National Performance Management Measures: Highway Safety Improvement Program, 13881-13916 [2016-05202]

Agencies

• Federal Highway Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 81, Number 50 (Tuesday, March 15, 2016)]
[Rules and Regulations]
[Pages 13881-13916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05202]



[[Page 13881]]

Vol. 81

Tuesday,

No. 50

March 15, 2016

Part II





Department of Transportation





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Federal Highway Administration





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23 CFR Part 490





National Performance Management Measures: Highway Safety Improvement 
Program; Final Rule

Federal Register / Vol. 81 , No. 50 / Tuesday, March 15, 2016 / Rules 
and Regulations

[[Page 13882]]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 490

[Docket No. FHWA-2013-0020]
RIN 2125-AF49


National Performance Management Measures: Highway Safety 
Improvement Program

AGENCY: Federal Highway Administration (FHWA), Department of 
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: The purpose of this final rule is to establish performance 
measures for State departments of transportation (State DOT) to use to 
carry out the Highway Safety Improvement Program (HSIP) and to assess 
the: Number of motor vehicle crash-related serious injuries and 
fatalities; number of serious injuries and fatalities of non-motorized 
users; and serious injuries and fatalities per vehicle miles traveled 
(VMT).
    The FHWA issues this final rule based on section 1203 of the Moving 
Ahead for Progress in the 21st Century Act (MAP-21), which identifies 
national transportation goals and requires the Secretary to promulgate 
a rulemaking to establish performance measures and standards in 
specified Federal-aid highway program areas. The FHWA also considered 
the provisions in the Fixing America's Surface Transportation Act (FAST 
Act) in the development of this final rule. The HSIP is a Federal-aid 
highway program with the purpose of achieving a significant reduction 
in fatalities and serious injuries on all public roads, including non-
State-owned public roads and roads on tribal lands.

DATES: This final rule is effective April 14, 2016. The incorporation 
by reference of certain publications listed in the regulation is 
approved by the Director of the Federal Register as of April 14, 2016.

FOR FURTHER INFORMATION CONTACT: Francine Shaw Whitson, Office of 
Infrastructure, (202) 366-8028, or Anne Christenson, Office of the 
Chief Counsel, (202) 366-0740, Federal Highway Administration, 1200 New 
Jersey Ave. SE., Washington, DC 20590. Office hours are from 8:00 a.m. 
to 4:30 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    The notice of proposed rulemaking (NPRM) published at 79 FR 13846 
on March 11, 2014, and all comments received may be viewed online 
through: https://www.regulations.gov. 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 from the Office of the Federal Register's home page at: 
https://www.federalregister.gov and the Government Printing Office's Web 
site at: https://www.gpo.gov.

Table of Contents for Supplementary Information

I. Executive Summary
    A. Purpose of the Regulatory Action
    B. Summary of Major Provisions
    C. Costs and Benefits
II. Acronyms and Abbreviations
III. Background
IV. Summary of Comments
V. Section-by-Section Discussion of the General Information and 
Highway Safety Improvement Program Measures
    A. Subpart A--General Information
    B. Subpart B--National Performance Management Measures for the 
Highway Safety Improvement Program
VI. Rulemaking Analyses and Notices

I. Executive Summary

A. Purpose of the Regulatory Action

    The MAP-21 (Pub. L. 112-141) and the FAST Act (Pub. L. 114-94) 
transform the Federal-aid highway program by establishing new 
performance management requirements to ensure that State DOTs and 
Metropolitan Planning Organizations (MPO) choose the most efficient 
investments for Federal transportation funds. Performance management 
refocuses attention on national transportation goals, increases the 
accountability and transparency of the Federal-aid highway program, and 
improves project decisionmaking through performance-based planning and 
programming. State DOTs will now be required to establish performance 
targets and assess performance in 12 areas \1\ established by the MAP-
21, and FHWA will assess \2\ their progress toward meeting targets in 
10 of these areas.\3\ State DOTs that fail to meet or make significant 
progress toward meeting safety targets will be required to direct a 
portion of their HSIP funding toward projects that will improve safety.
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    \1\ These areas are listed within 23 U.S.C. 150(c), which 
requires the Secretary to establish measures to assess performance 
or condition.
    \2\ 23 U.S.C. 148(i) and 23 U.S.C. 119(e)(7).
    \3\ Title 23, sections 119(e)(7), 148(i), and 167(j) require 
USDOT to assess significant progress in 10 of the 12 performance 
measure areas (5 for the NHPP, 4 for HSIP, and 1 for freight).
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    This rule establishes the performance measures to carry out the 
HSIP and to assess serious injuries and fatalities on all public roads. 
This is the first of 3 rules that will establish performance measures 
for State DOTs and MPOs to use to carry out Federal-aid highway 
programs and assess performance in each of 12 areas. In addition, this 
rule establishes the process for State DOTs and MPOs to use to 
establish and report their safety targets, the process for State DOTs 
and MPOs to report on their progress for their safety targets, and the 
process that FHWA will use to assess whether State DOTs have met or 
made significant progress toward meeting safety targets.
    This rule establishes regulations to more effectively evaluate and 
report on surface transportation safety across the country. These 
regulations will: Improve data by providing for greater consistency in 
the reporting of serious injuries; improve transparency by requiring 
reporting on serious injuries and fatalities through a public reporting 
system; enable targets and progress to be aggregated at the national 
level; require State DOTs to meet or make significant progress toward 
meeting their targets; and establish requirements for State DOTs that 
have not met or made significant progress toward meeting their targets. 
State DOTs and MPOs will be expected to use the information and data 
generated as a result of the new regulations to inform their 
transportation planning and programming decisionmaking and directly 
link investments to desired performance outcomes. In particular, FHWA 
expects that the new performance measures outlined in this rule will 
help State DOTs and MPOs make investment decisions that will result in 
the greatest possible reduction in fatalities and serious injuries. 
This regulation is also aligned with DOT support of the Toward Zero 
Deaths (TZD) vision, which has also been adopted by many State DOTs. 
While MAP-21 does not specify targets for agencies, per the authorizing 
statute, this performance measures system is an important step in 
measuring and holding accountable transportation agencies as they work 
toward the goal of eliminating traffic deaths and serious injuries. 
These regulations will also help provide FHWA the ability to better 
communicate a national safety performance story.

B. Summary of Major Provisions

    In this rule, FHWA establishes the measures to be used by State 
DOTs to assess performance and carry out the HSIP; the process for 
State DOTs and MPOs to establish their safety targets; the methodology 
to determine whether State DOTs have met or made

[[Page 13883]]

significant progress toward meeting their safety targets; and the 
process for State DOTs and MPOs to report on progress for their safety 
targets.
    This final rule retains the majority of the major provisions of the 
NPRM but makes significant changes by (a) establishing a fifth 
performance measure to assess the number of combined non-motorized 
fatalities and non-motorized serious injuries and (b) revising the 
methodology for assessing whether a State has met or made significant 
progress toward meeting its targets. The FHWA updates these and other 
elements of the NPRM based on the review and analysis of comments 
received.
    The FHWA establishes 5 performance measures to assess performance 
and carry out the HSIP: (1) Number of fatalities, (2) rate of 
fatalities per VMT, (3) number of serious injuries, (4) rate of serious 
injuries per VMT, and (5) number of combined non-motorized fatalities 
and non-motorized serious injuries. The FHWA sought comment on how a 
non-motorized measure could be included in this rulemaking and, in 
response to comments establishes the non-motorized measure included in 
this final rule. The measures will be calculated based on a 5-year 
rolling average.
    In response to comments, FHWA has made changes to the process for 
assessing whether a State met or made significant progress toward 
meeting its targets based on whether the process would meet the 
following criteria: (a) Holds States to a higher level of 
accountability; (b) does not discourage aggressive targets; (c) 
supports the national goal to achieve a significant reduction in 
fatalities and serious injuries; (d) is fair and consistent/
quantitative; (e) is simple/understandable/transparent; (f) is not 
based on historical trends; and (g) is associated with the targets. The 
FHWA adopts in this final rule that a State is determined to meet or 
make significant progress toward meeting its targets when four out of 
five targets are met or the outcome for the performance measure is 
better than the State's baseline safety performance for that measure.
    This rule establishes the processes for State DOTs and MPOs to 
establish their safety targets and to report on progress for their 
safety targets. State DOT targets shall be identical to the targets 
established by the State Highway Safety Office (SHSO) for common 
performance measures reported in the State's Highway Safety Plan (HSP). 
Targets established by the State DOTs will begin to be reported in the 
first HSIP annual report that is due after 1 year from the effective 
date of this final rule and then each year thereafter in subsequent 
HSIP annual reports. Once submitted in an HSIP report, approval from 
FHWA (and from the National Highway Transportation Safety 
Administration (NHTSA) for the common performance measures in the HSP) 
would be required to change a State's performance target for that year. 
However, the State will be free to establish new targets for subsequent 
years in the following year's HSIP report. States may choose to 
establish separate targets for any urbanized area within the State and 
may also choose to establish a single non-urbanized target for all of 
the non-urbanized areas in a State. These optional targets will not be 
included in assessing whether the State met or made significant 
progress toward meeting its targets.
    The MPOs may choose between programing projects in support of all 
the State targets, establishing specific numeric targets for all of the 
performance measures (number or rate), or establishing specific numeric 
targets for one or more individual performance measures (number or 
rate) and supporting the State target on other performance measures. 
For MPOs with planning boundaries that cross State lines, the MPO must 
plan and program projects to contribute toward separate sets of 
targets--one set for each State in which the planning area boundary 
extends.
    State DOTs that have not met or made significant progress toward 
meeting safety performance targets must: (1) Use a portion of their 
obligation authority only for HSIP projects and (2) submit an annual 
implementation plan that describes actions the State DOT will take to 
meet their targets. Both of these provisions will facilitate 
transportation safety initiatives and improvements and help focus 
Federal resources in areas where Congress has deemed a national 
priority.
    State DOTs and MPOs are expected to use the information and data 
generated as a result of this new regulation to better inform their 
transportation planning and programming decisionmaking, and 
specifically to use their resources in ways that will result in the 
greatest possible reduction in fatalities and serious injuries.
    The FHWA has decided to phase in the effective dates for the three 
final rules for these performance measures so that each of the three 
performance measures rules will have individual effective dates. This 
allows FHWA and the States to begin implementing some of the 
performance requirements much sooner than waiting for the rulemaking 
process to be complete for all the rules.
    The FHWA also updates several other elements of the NPRM based on 
the review and analysis of comments received. Section references below 
refer to sections of the regulatory text for title 23 of the Code of 
Federal Regulations (CFR).
    The FHWA adds a provision to incorporate by reference the Model 
Minimum Uniform Crash Criteria (MMUCC) Guideline, 4th Edition, and the 
ANSI D16.1-2007, Manual on Classification of Motor Vehicle Traffic 
Accidents, 7th Edition, in Sec.  490.111 because MMUCC is used in the 
definition of the number of serious injuries and ANSI D16.1-2007 is 
used in the definition of non-motorized serious injuries. The FHWA also 
extends the time period proposed in the NPRM for States to adopt the 
MMUCC 4th Edition definition and attribute for ``Suspected Serious 
Injury (A)'' from 18 months (as proposed in the NPRM) to 36 months. The 
requirement to adopt revised future editions of MMUCC subsequent to the 
4th Edition is removed.
    The FHWA updates the list of definitions in Sec.  490.205 to remove 
definitions no longer required and to add new definitions based on the 
revised methodology for determining whether a State has met or made 
significant progress toward meeting its performance targets. The FHWA 
also adds definitions to define explicitly the terms used in the new 
performance measures.
    Section 490.207 establishes the safety performance measures State 
DOTs and MPOs shall use to assess roadway safety. State DOTs and MPOs 
shall measure serious injuries and fatalities per VMT, and the total 
numbers of both serious injuries and fatalities. In addition to those 
proposed in the NPRM, the FHWA adds a performance measure to assess the 
number of combined non-motorized fatalities and non-motorized serious 
injuries. Each of the performance measures use a 5-year rolling 
average. The exposure rate measures are calculated annually per 100 
million VMT. Data for the fatality-related measures are taken from the 
Fatality Analysis Reporting System (FARS) and data for the serious 
injury-related measures are taken from the State motor vehicle crash 
database. The VMT are derived from the Highway Performance Monitoring 
System (HPMS). For MPOs that choose to establish a quantifiable rate 
target, the exposure data for serious injury and fatality rates are 
calculated annually per 100 million VMT from the MPO's

[[Page 13884]]

estimate of VMT that is consistent with other Federal reporting 
requirements, if applicable. The FHWA added the provision for MPO VMT 
estimates since the NPRM did not identify an appropriate source for MPO 
VMT, as it does not exist in the HPMS.
    Section 490.209 describes the process State DOTs and MPOs shall use 
to establish their targets for each of the safety measures. The FHWA 
reduces the number of years of historical data that must be included in 
the HSIP report, consistent with changes to the methodology for 
assessing significant progress. In addition, FHWA revises the option 
for States to establish separate urbanized and non-urbanized area 
targets. Rather than allowing States to establish one additional 
urbanized area target for all urbanized areas within the State, the 
final rule allows State DOTs to select any number and combination of 
urbanized area boundaries and a single non-urbanized area for the 
establishment of additional targets. This change provides flexibility 
for States because the rule does not include optional urbanized and 
non-urbanized targets in the assessment of whether a State has met or 
made significant progress toward meeting its targets. The FHWA retains 
the requirement that the performance measures common to the State's HSP 
and the HSIP (number of fatalities, fatality rate, and number of 
serious injuries) be defined identically, as coordinated through the 
State Strategic Highway Safety Plan (SHSP).\4\
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    \4\ The MAP-21 requires State Highway Safety Offices to use the 
``Traffic Safety Performance Measures for States and Federal 
Agencies'' (DOT HS 811 025) to establish performance measures and 
targets in the HSP. The MAP-21 further requires NHTSA to coordinate 
with GHSA in making revisions to the performance measures identified 
in the report. Accordingly, any changes to the common performance 
measures, such as changes to the 5-year rolling average, are subject 
to the GHSA coordination requirement in MAP-21.
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    Section 490.211 establishes the method FHWA will use to assess 
whether State DOTs have met or have made significant progress toward 
meeting their safety performance targets in accordance with 23 U.S.C. 
148(i). Based on review and analysis of comments, FHWA revises the 
method proposed in the NPRM. In this final rule, a State DOT is 
determined to have met or made significant progress toward meeting its 
targets when at least four of the five required performance targets are 
either met or the safety outcome for the performance measure has 
improved (i.e., the number or rate of fatalities and/or serious 
injuries is less than the 5-year rolling average data for the 
performance measure for the year prior to the establishment of the 
State's target). The FHWA also reduces the time lag between when the 
State establishes the targets and when FHWA will assess whether the 
State has met or made significant progress toward meeting its targets. 
Instead of using Final FARS for all 5 years of data that comprise the 
rolling average, FHWA adopts the use of the FARS Annual Report File 
(ARF) if Final FARS data are not available. This approach allows FHWA 
to assess whether States met or made significant progress toward 
meeting their targets 1 year earlier than proposed in the NPRM. 
However, FHWA recognizes the timeframe for this determination remains 
lengthy. In order to accelerate the transparency that is one of the 
goals of the MAP-21, FHWA is in the process of creating a new public 
Web site to help communicate the national performance story. The Web 
site will likely include infographics, tables, charts, and descriptions 
of the performance data that the State DOTs would be reporting to FHWA. 
The FHWA will make publicly available postings of State performance 
statistics and other relevant data that relate to this performance 
measurement system as soon as the data are available.
    The method by which FHWA will review performance progress of MPOs 
is discussed in the update to the Statewide and Metropolitan Planning 
regulation as described in 23 CFR part 450.
    Section 490.213 identifies safety performance reporting 
requirements for State DOTs and MPOs. State DOTs establish and report 
their safety targets and progress toward meeting their safety targets 
in the annual HSIP report in accordance with 23 CFR part 924. As 
proposed in the NPRM, targets established by an MPO would be reported 
annually to their State DOT(s). The FHWA revises this section to 
require MPOs to report their established targets to the relevant State 
DOT(s) in a manner that is agreed upon and documented by both parties, 
rather than requiring the procedure be documented in the Metropolitan 
Planning Agreement. The MPOs report on progress toward the achievement 
of their targets in their System Performance Report as part of their 
transportation plan, in accordance with 23 CFR part 450.

C. Costs and Benefits

    The FHWA estimated the incremental costs associated with the new 
requirements in this rule that represent a change to current practices 
for State DOTs and MPOs. The FHWA derived the costs of each of these 
components by assessing the expected increase in level of effort from 
labor to standardize and update data collection and reporting systems 
of State DOTs, as well as the increase in level of effort from labor to 
establish and report targets.
    To estimate costs, FHWA multiplied the level of effort, expressed 
in labor hours, with a corresponding loaded wage rate that varied by 
the type of laborer needed to perform the activity. Following this 
approach the 10-year undiscounted incremental cost to comply with this 
rule is $87.5 million.
    The final rule's 10-year undiscounted cost ($87.5 million in 2014 
dollars) increased from the proposed rule ($66.7 million in 2012 
dollars). The FHWA made several changes which affected cost. These 
changes include updating costs to 2014 dollars from 2012 dollars and 
updating labor costs to reflect current Bureau of Labor Statistics 
(BLS) data. In addition, FHWA revised the final rule Regulatory Impact 
Analysis (RIA) to reflect (1) updated local law enforcement census 
data, (2) costs associated with establishing the new non-motorized 
fatalities and non-motorized serious injuries performance measure, (3) 
the removal of the proposed requirement for State DOTs to compile a 10-
year historical trend line, (4) the deferred implementation of MMUCC, 
4th edition compliance, (5) added effort required for MPOs to estimate 
MPO-specific VMT for performance targets, (6) a decrease in the number 
of MPOs expected to establish quantifiable targets, (7) costs of 
coordinating on the establishment of targets in accordance with 23 CFR 
part 450, (8) an increase in the estimated number of States that might 
not meet or make significant progress toward meeting their targets 
using the new methodology included in the final rule, and (9) a 
decrease in the number of years States that do not meet or make 
significant progress toward meeting their targets will incur costs.
    The FHWA expects that the rule will result in some significant 
benefits, although they are not easily quantifiable. Specifically, FHWA 
expects the rule will allow for more informed decisionmaking at a 
regional, State, and Federal level on safety-related project, program, 
and policy choices. The rule will increase focus on investments that 
will help to reduce fatalities and serious injuries. The rule also will 
yield greater accountability on how States and MPOs are using Federal-
aid highway funds because of the MAP-21 requirements for mandated 
reporting that will increase visibility and transparency.
    The FHWA could not directly quantify the expected benefits 
discussed above due to data limitations and the

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amorphous nature of the benefits from the rule. Therefore, FHWA used a 
break-even analysis as the primary approach to quantify benefits. The 
FHWA focused its break-even analysis on reduction in fatalities or 
serious injuries needed in order for the benefits of the rule to 
justify the costs. The results of the break-even analysis quantified 
the dollar value of the benefits that the rule must generate to 
outweigh the threshold value, the estimated cost of the rule, which is 
$87.5 million in undiscounted dollars. The results show that the rule 
must prevent approximately 10 fatalities, or 199 incapacitating 
injuries, over 10 years to generate enough benefits to outweigh the 
cost of the rule. The FHWA believes that the benefits of this rule will 
surpass this threshold and, as a result, the benefits of the rule will 
outweigh the costs.
    Relative to the proposed rule, both of the break-even thresholds 
increased in the final rule. For both fatalities and incapacitating 
injuries, the break-even points were affected by the increase in the 
undiscounted 10-year cost, as well as by an increase in the Value of 
Statistical Life (VSL) for fatalities, currently valued at $9,200,000, 
and the average cost per incapacitating injury, currently valued at 
$440,000.
    The table below displays the Office of Management and Budget (OMB) 
A-4 Accounting Statement as a summary of the cost and benefits 
calculated for this rule.

                                                              OMB A-4 Accounting Statement
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                                                 Estimates                                             Units
          Category           --------------------------------------------------------------------------------------------------------   Source/citation
                                  Primary           Low            High         Year dollar      Discount rate      Period covered
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                                                                        Benefits
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Annualized Monetized ($       None..........  None..........  None..........  NA............  7%................  NA................  Not Quantified.
 millions/year).              None..........  None..........  None..........  NA............  3%................  NA................
Annualized Quantified.......  None..........  None..........  None..........  NA............  7%................  NA................  Not Quantified.
                              None..........  None..........  None..........  NA............  3%................  NA................
                             --------------------------------------------------------------------------------------------------------
Qualitative.................  The rule is cost-beneficial if over the 10-year analysis period it reduces the number of fatalities by  Final Rule RIA.
                                 9.5 or the number of incapacitating injuries by 198.8, which is equivalently 1.0 fatality or 19.9
                                 incapacitating injuries per year in a 10-year study period, from its current base case projection.
                                     Because of this low threshold, FHWA determines that the rule benefits outweigh the costs.
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                                                                          Costs
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Annualized Monetized ($/      $9,339,123....  ..............  ..............  2014..........  7%................  10 Years..........  Final Rule RIA.
 year).                       $9,015,871....  ..............  ..............  2014..........  3%................  10 Years..........
Annualized Quantified.......  None..........  None..........  None..........  2014..........  7%................  10 Years..........  Not Quantified.
                              None..........  None..........  None..........  2014..........  3%................  10 Years..........
Qualitative.................  None.
Transfers...................  None.
From/To.....................  From:                                           To:
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                                                                         Effects
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State, Local, and/or Tribal   $9,339,123....  ..............  ..............  2014..........  7%................  10 Years..........  Final Rule RIA.
 Government.                  $9,015,871....  ..............  ..............  2014..........  3%................  10 Years..........
                             ------------------------------------------------
Small Business..............  Not expected to have a significant impact on a  NA............  NA................  NA................  Final Rule RIA.
                                   substantial number of small entities.
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II. Acronyms and Abbreviations

                                                            Acronyms and Abbreviations Table
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AASHTO..............................  American Association of State Highway and Transportation Officials.
AMBAG...............................  Association of Monterey Bay Area Governments.
AMPO................................  Association of Metropolitan Planning Organizations.
ARC.................................  Atlanta Regional Commission.
ARF.................................  Annual Report File.
ATSSA...............................  American Traffic Safety Services Association.
BLS.................................  Bureau of Labor Statistics.
Caltrans............................  California Department of Transportation.
CFR.................................  Code of Federal Regulations.
CODES...............................  Crash Outcome Data Evaluation System.
CY..................................  Calendar Year.
DOT.................................  U.S. Department of Transportation.
DVRPC...............................  Delaware Valley Regional Planning Commission.
EO..................................  Executive Order.
FARS................................  Fatality Analysis Reporting System.
FAST Act............................  Fixing America's Surface Transportation Act.
FHWA................................  Federal Highway Administration.

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FMCSA...............................  Federal Motor Carrier Safety Administration.
FR..................................  Federal Register.
FY..................................  Fiscal Year.
GHSA................................  Governor Highway Safety Association.
HIPPA...............................  Health Insurance Privacy and Portability Act.
HPMS................................  Highway Performance Monitoring System.
HSIP................................  Highway Safety Improvement Program.
HSP.................................  Highway Safety Plan.
IBR.................................  Incorporation by reference.
IFR.................................  Interim Final Rule.
KABCO...............................  K, killed; A, disabling injury; B, evident injury; C, possible injury; O, no apparent injury.
LAB.................................  League of American Bicyclists.
MAP-21..............................  Moving Ahead for Progress in the 21st Century Act.
MARC................................  Mid-America Regional Council.
MIRE................................  Model Inventory of Roadway Elements.
MMUCC...............................  Model Minimum Uniform Crash Criteria.
MPO.................................  Metropolitan Planning Organizations.
NACCHO..............................  National Association of County and City Health Officials..
NARA................................  National Archives and Records Administration.
NHTSA...............................  National Highway Traffic Safety Administration.
NPRM................................  Notice of proposed rulemaking.
NTSB................................  National Transportation Safety Board.
NYMTC...............................  New York Metropolitan Transportation Council.
NYSAMPO.............................  New York State Association of Metropolitan Planning Organizations.
OMB.................................  Office of Management and Budget.
PRA.................................  Paperwork Reduction Act of 1995.
RIA.................................  Regulatory Impact Analysis.
RIN.................................  Regulatory Identification Number.
SANDAG..............................  San Diego Association of Governments.
SBCAG...............................  Santa Barbara County Association of Governments.
SCAG................................  Southern California Association of Governments.
SEMCOG..............................  Southeast Michigan Council of Governments.
SHSO................................  State Highway Safety Office.
SHSP................................  Strategic Highway Safety Plan.
SRTA................................  Shasta Regional Transportation Agency.
SRTS................................  Safe Routes to Schools National Partnership.
State DOT...........................  State Department of Transportation.
STIP................................  State Transportation Improvement Program.
STP.................................  Surface Transportation Program.
TMA.................................  Transportation Management Area.
TPM.................................  Transportation Performance Management.
U.S.C...............................  United States Code.
VMT.................................  Vehicle miles traveled.
VSL.................................  Value of Statistical Life.
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III. Background

    On March 11, 2014, at 79 FR 13846, FHWA published an NPRM proposing 
the following: the definitions that will be applicable to the new 23 
CFR part 490; the process to be used by State DOTs and MPOs to 
establish their safety-related performance targets that reflect the 
measures proposed in the NPRM; a methodology to be used to assess State 
DOTs' compliance with the target achievement provision specified under 
23 U.S.C. 148(i); and the process State DOTs must follow to report on 
progress toward meeting or making significant progress toward meeting 
safety-related performance targets. The NPRM also included a discussion 
of the collective rulemaking actions FHWA intends to take to implement 
MAP-21 performance-related provisions. On May 28, 2014, at 79 FR 30507, 
FHWA extended the comment period on the NPRM from June 9, 2014, to June 
30, 2014.

IV. Summary of Comments

    The FHWA received 13,269 letters to the docket, including letters 
from 38 State DOTs, 27 local government agencies, more than 50 
associations and advocacy groups, over 13,000 individuals and 
consultants, various other government agencies as well as 1 letter 
cosigned by 8 U.S. Senators. The FHWA has also reviewed and considered 
the implications of the FAST Act on the Safety Performance Management 
Final Rule.
    Of all the letters to the docket, 99 percent specifically addressed 
bicycle and pedestrian safety issues or the need for a non-motorized 
performance measure. The FHWA received more than 11,000 verbatim 
duplicates of a letter written by the League of American Bicyclists 
(LAB) or a copy of the letter with additional commentary. Fifty-seven 
additional letters endorsed the LAB letter and provided additional 
comments. Smart Growth America submitted verbatim letters from 1,513 
individuals and FHWA received 473 duplicate copies of letters 
supporting the Safety Routes to Schools National Partnership (SRTS) and 
6 letters in support of America Walks. Another 84 letters from 
individuals provided comments focusing on bicycle/pedestrian issues 
without reference to specific organization letters.
    Of the State DOT letters, 27 either (a) specifically mentioned 
their general or strong support for the first of two letters that the 
American Association of State Highway and Transportation Officials 
(AASHTO) submitted to the docket, (b) identified that they assisted 
with writing portions of the first AASHTO letter and were in general 
agreement with AASHTO's letter; and/or (c) stated

[[Page 13887]]

that they agreed with the letter and had additional comments specific 
to their State. Those included: Alaska, Arkansas, Colorado, 
Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, 
Louisiana, Maine, Massachusetts, Michigan, Minnesota, Montana, New 
Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, 
Rhode Island, South Dakota, Utah, and Wyoming DOTs.
    The FHWA carefully considered the comments received from the vast 
array of stakeholders. The comments, and summaries of FHWA's analyses 
and determinations, are discussed in the following sections.

Selected Topics for Which FHWA Requested Comments

    In the NPRM, FHWA specifically requested comments or input 
regarding certain topics related to the safety performance measures 
rulemaking. Several of those have an overall impact on the regulatory 
language in this final rule, so are discussed in this section. The 
others are discussed in the Section-by-Section analysis.
Effective Date
    In the NPRM, FHWA proposed to establish one common effective date 
for all three final rules for the performance measures established 
pursuant to 23 U.S.C. 150. The FHWA solicited comments on an 
appropriate effective date. While there were no comments suggesting a 
specific date, the American Traffic Safety Services Association (ATSSA) 
and Delaware DOT disagreed with the proposal for one effective date for 
all three rules for performance measures because fatalities and serious 
injuries are measured already, well known, and used in practice by 
virtually every State DOT. The commenters stated that especially with 
no firm timetable for the subsequent performance measure rulemakings, 
there is no reason to delay implementation of this congressional 
mandate to more effectively plan to save lives on our roadways. 
Michigan and Washington State DOTs and the Mid-America Regional Council 
(MARC) expressed support for one common effective date in order to 
reduce the burdens on States to manage multiple effective dates. 
Virginia DOT suggested that without knowing more about the other 
proposed performance measures it was premature to seek opinions on 
effective dates. Finally, in an Explanatory Statement accompanying the 
``Consolidated and Further Continuing Appropriations Act, 2015,'' 
published in the Congressional Record,\5\ Congress directs FHWA to 
publish its final rule on safety performance measures no later than 
September 30, 2015.
---------------------------------------------------------------------------

    \5\ Congressional Record, December 11, 2014, page H9978, https://www.congress.gov/crec/2014/12/11/CREC-2014-12-11-bk2.pdf.
---------------------------------------------------------------------------

    While FHWA recognizes that one common effective date could be 
easier for State DOTs and MPOs to implement, the process to develop and 
implement all of the Federal-aid highway performance measures required 
in MAP-21 has been lengthy. It is taking more than 3 years since the 
enactment of MAP-21 to issue all three performance measure NPRMs (the 
first performance management NPRM was published on March 11, 2014; the 
second NPRM \6\ was published on January 5, 2015; and the third 
performance management NPRM \7\ is expected to be published soon). 
Rather than waiting for all three rules to be final before implementing 
the MAP-21 performance measure requirements, FHWA has decided to phase 
in the effective dates for the three final rules for these performance 
measures so that each of the three performance measures rules will have 
individual effective dates. This allows FHWA and the States to begin 
implementing some of the performance requirements much sooner than 
waiting for the rulemaking process to be complete for all the rules. 
This approach would also implement the safety-related measures and 
requirements in this rule before the requirements proposed in the other 
two rules. Earlier implementation of the safety-related requirements in 
this rule is consistent with a DOT priority to improve the safety 
mission across the Department.\8\ The FHWA also believes that a 
staggered approach to implementation (i.e., implementing one set of 
requirements at the onset and adding on requirements over time) will 
better help States and MPOs transition to a performance-based 
framework.
---------------------------------------------------------------------------

    \6\ NPRM for the National Performance Management Measures; 
Assessing Pavement Condition for the National Highway Performance 
Program and Bridge Condition for the National Highway Performance 
Program 80 FR 326 (proposed January 5, 2015) https://www.gpo.gov/fdsys/pkg/FR-2015-01-05/pdf/2014-30085.pdf.
    \7\ NPRM for the National Performance Management Measures; 
Assessing Performance of the National Highway System, Freight 
Movement on the Interstate System, and Congestion Mitigation and Air 
Quality Improvement Program.
    \8\ https://www.dot.gov/sites/dot.gov/files/docs/FY2016-DOT-BudgetHighlights-508.pdf.
---------------------------------------------------------------------------

    The FHWA believes that States are in a position to begin to 
implement the safety Transportation Performance Management (TPM) 
requirements now for several reasons. Since 2010, SHSO have been 
establishing and reporting annual targets for safety performance 
measures. Since MAP-21 was enacted, FHWA and the NHTSA have encouraged 
State SHSOs to coordinate with State DOTs as their targets are 
established. States are familiar with the safety data sources necessary 
to establish their targets (FARS, State motor vehicle crash databases 
and HPMS) as these have been in place for many years. The FHWA 
documented in the NPRM its assessment that the safety measures were 
appropriate for national use and that FHWA was ready to implement the 
measures in an accurate, reliable, and credible manner, with a few gaps 
that were addressed in the NPRM. There were no comments countering this 
assessment. Although FHWA believes that individual implementation dates 
will help States and MPOs transition to performance based planning, to 
lessen any potential burden of staggered effective dates on States and 
MPOs, FHWA will provide guidance to States and MPOs on how to carry out 
the new performance requirements.
    In addition to providing this guidance, FHWA is committed to 
providing stewardship to State DOTs and MPOs to assist them as they 
take steps to manage and improve the performance of the highway system. 
As a Federal agency, FHWA is in a unique position to utilize resources 
at a national level to capture and share strategies that can improve 
performance. The FHWA will continue to dedicate resources at the 
national level to provide technical assistance, technical tools, and 
guidance to State DOTs and MPOs to assist them in making more effective 
investment decisions. It is FHWA's intent to be engaged at a local and 
national level to provide resources and assistance from the onset to 
identify opportunities to improve performance and to increase the 
chances for full State DOT and MPO compliance of new performance 
related regulations. The FHWA technical assistance activities include 
conducting national research studies, improving analytical modeling 
tools, identifying and promoting best practices, preparing guidance 
materials, and developing data quality assurance tools.
Principles Considered in the Development of the Regulations for 
National Performance Management Measures Under 23 U.S.C. 150(c)
    The FHWA listed nine principles in the NPRM preamble that were 
considered in the development of the

[[Page 13888]]

proposed regulation \9\. The FHWA encouraged comments on the extent to 
which the approach to performance measures set forth in the NPRM 
supported these principles. Commenters were supportive of both the 
principles and the approach to establishing the performance measures. 
The AASHTO, Connecticut DOT, and Tennessee DOT expressed support for 
the nine guiding principles, stating that they are appropriate and that 
the approaches set forth in the NPRM supported these guiding 
principles. The AASHTO suggested revisions seeking to clarify and 
underscore several of these principles, particularly providing 
flexibility to States in target establishment and ensuring adequate 
time to phase in requirements. Connecticut DOT echoed the need for 
flexibility in target establishment and phase in time. The New York 
State Association of Metropolitan Planning Organizations (NYSAMPO) 
expressed overall agreement with the principles and indicated that the 
proposed safety performance measure rule generally meets the intent of 
these principles. This commenter did, however, suggest that the NPRM 
did not fully realize the opportunity for ``increased accountability 
and transparency'' as it relates to the proposed methodology for 
determining whether States are making significant progress toward their 
performance targets and suggested this could be a ``black box'' 
analysis meant to obscure rather than inform. In addition, the NYSAMPO 
stated that it was not clear how the NPRM demonstrates an 
``understanding that priorities differ.'' For example, improving safety 
in terms of reducing deaths and injuries for all users should be a high 
priority of both State DOTs and MPOs, but priorities may differ on 
modal issues, and trade-offs may need to be made with other national 
goals in a highly constrained funding environment.
---------------------------------------------------------------------------

    \9\ Nine principles used in the development of proposed 
regulations for national performance management measures under 23 
U.S.C. 150(c), www.regulatons.gov, Docket FHWA-2013-0020:
     Provide for a National Focus--focus the performance 
requirements on outcomes that can be reported at a national level.
     Minimize the Number of Measures--identify only the most 
necessary measures that will be required for target establishment 
and progress reporting. Limit the number of measures to no more than 
two per area specified under 23 U.S.C. 150(c).
     Ensure for Consistency--provide a sufficient level of 
consistency, nationally, in the establishment of measures, the 
process to set targets and report expectations, and the approach to 
assess progress so that transportation performance can be presented 
in a credible manner at a national level.
     Phase in Requirements--allow for sufficient time to 
comply with new requirements and consider approaches to phase in new 
approaches to measuring, target establishment, and reporting 
performance.
     Increase Accountability and Transparency--consider an 
approach that will provide the public and decisionmakers a better 
understanding of Federal transportation investment needs and return 
on investments.
     Consider Risk--recognize that risks in the target 
establishment process are inherent, and that performance can be 
impacted by many factors outside the control of the entity required 
to establish the targets.
     Understand that Priorities Differ--recognize that State 
DOTs and MPOs must establish targets across a wide range of 
performance areas, and that they will need to make performance 
trade-offs to establish priorities, which can be influenced by local 
and regional needs.
     Recognize Fiscal Constraints--provide for an approach 
that encourages the optimal investment of Federal funds to maximize 
performance but recognize that, when operating with scarce 
resources, performance cannot always be improved.
     Provide for Flexibility--recognize that the MAP-21 
requirements are the first steps that will transform the Federal-aid 
highway program to a performance-based program and that State DOTs, 
MPOs, and other stakeholders will be learning a great deal as 
implementation occurs.
---------------------------------------------------------------------------

    Letters organized by Smart Growth America suggested that the 
proposed rulemaking did not meet the congressional intent of MAP-21. 
The commenters stated that without real targets and clearly defined 
measures of success, the proposed rules do not provide the necessary 
motivation to improve safety and reduce the number of fatalities and 
serious injuries suffered by motorized and non-motorized users.
    The FHWA appreciates the comments on the guiding principles. Based 
on the general support of the principles, FHWA retains the principles 
in the development of this final rule. As outlined in the section-by-
section discussion below, FHWA has made revisions to portions of the 
regulation to more closely match the principles, including adding an 
additional performance measure and the timing and methodology of the 
assessment of whether a State has met or made significant progress 
toward meeting its targets. The FHWA addresses AASHTO and Connecticut 
DOT concerns about providing flexibility to States in target 
establishment in the Sec.  490.209 discussion of identical targets. In 
response to the NYSAMPO's comment on the principle of ``understanding 
that priorities differ'' and that States and MPOs need to make trade-
offs, FHWA believes that this issue applies to the entire performance 
management program, not just this rule. The FHWA provides State DOTs 
and MPOs flexibilities to make performance trade-offs as they make 
target establishment and programming decisions in FHWA proposals for 23 
CFR part 490.\10\ The ``Statewide and Nonmetropolitan Transportation 
Planning; Metropolitan Transportation Planning'' NPRM (Planning NPRM) 
\11\ further supports this principle because, as described in that 
proposal, the planning process brings all of the elements of a 
performance management framework (such as establishment of performance 
measures and targets and reporting requirements) together by linking 
decisionmaking and investment priorities to performance targets in 
areas like safety, infrastructure condition, traffic congestion, system 
reliability, emissions and freight movement. Trade-offs and 
establishing local and regional priorities are key elements of the TPM 
framework and a performance based planning process.
---------------------------------------------------------------------------

    \10\ NPRM for the National Performance Management Measures; 
Assessing Pavement Condition for the National Highway Performance 
Program and Bridge Condition for the National Highway Performance 
Program 80 FR 326, https://www.gpo.gov/fdsys/pkg/FR-2015-01-05/pdf/2014-30085.pdf and future proposed rulemaking regarding National 
Performance Management Measures; Assessing Performance of the 
National Highway System, Freight Movement on the Interstate System, 
and Congestion Mitigation and Air Quality Improvement Program.
    \11\ The Statewide and Nonmetropolitan Transportation Planning; 
Metropolitan Transportation Planning NPRM: https://www.regulations.gov/#!documentDetail;D=FHWA-2013-0037-0001.
---------------------------------------------------------------------------

Separate Non-Motorized Performance Measures
    In developing the NPRM, FHWA considered input from numerous sources 
in selecting the proposed measures to carry out the HSIP and for State 
DOTs and MPOs to use to assess safety performance. In the NPRM, FHWA 
explained that it received information from stakeholders before 
publishing the NPRM through listening sessions and letters, in which 
the stakeholders suggested that: FHWA account for the safety of all 
road users by including separate measures for motorized and non-
motorized (e.g., pedestrian, bicycle) transportation; that FHWA should 
define performance measures that specifically evaluate the number of 
fatalities and serious injuries for pedestrian and bicycle crashes; and 
that FHWA should require that bicycle and pedestrian crashes and 
fatalities be reported nationally and by States and MPOs. In addition, 
following the passage of MAP-21 and before the issuance of the NPRM, 15 
Senators and 77 Members of the House of Representatives submitted 
letters to the Secretary of Transportation that expressed concern over 
rising bicyclist and pedestrian fatalities and suggested separate 
measures for motorized and non-motorized transportation should be 
established.

[[Page 13889]]

    The FHWA did not propose separate motorized and non-motorized 
performance measures in the NPRM, but requested comments on how DOT 
could address non-motorized performance measures in the final rule. In 
addition, FHWA requested input on the extent to which States and MPOs 
currently collect and report non-motorized data and the reliability and 
accuracy of such data, and how States and MPOs consider such data in 
their safety programs and in making their investment decisions. The 
FHWA desired to hear from stakeholders how non-motorized performance 
measures could be included in the final rule to better improve safety 
for all users.
    The majority of the comment letters submitted to the docket can be 
directly attributed to the question of whether to include a non-
motorized performance measure. The AASHTO and 23 State DOTs objected to 
creating a separate performance measure for non-motorized users. The 
AASHTO commented that safety measures should focus on all fatalities 
and serious injuries and not on emphasis areas, such as those for 
separate non-motorized users. Twenty-three States submitted letters to 
the docket either supporting AASHTO's comments or expressing individual 
objections to the separate inclusion of non-motorized measures: Alaska, 
California, Connecticut, Delaware, Florida, Georgia, Indiana, Iowa, 
Kentucky, Maine, Michigan, Minnesota, Missouri, Montana, New Jersey, 
North Dakota, Pennsylvania, Rhode Island, South Dakota, Tennessee, 
Texas, Vermont, and Utah. The AASHTO and these States suggested that 
focusing performance measures on a particular group, such as non-
motorized users, would limit States' ability to use a comprehensive 
evaluation strategy and data-driven approach to determine where the 
investment of limited resources can most effectively save lives and 
reduce serious injuries. The AASHTO and Delaware, Iowa, Kentucky, 
Michigan, Minnesota, Montana, and Vermont DOTs, as well as the 
California State Association of Counties, objected to a separate 
performance measure because non-motorized users are already addressed 
in the HSP that SHSOs submit to NHTSA and which includes analyses of 
non-motorized (pedestrian and bicyclists) fatalities. They indicated 
that the emphasis on non-motorized safety should remain in the HSP, 
which allows each State to focus on its individual safety problems, 
while minimizing the number of performance measures in the HSIP that 
require target establishment, measurement, and reporting. Delaware and 
Minnesota DOTs noted that introducing additional performance measures 
would conflict with the second principle used to develop the proposed 
performance management regulations (i.e., to minimize the number of 
measures). The AASHTO also noted that the option to require a non-
motorized performance measure would be counter to several of the 
principles used to develop the performance measures, namely, to 
minimize the number of measures, understand that priorities differ, and 
provide for flexibility. The AASHTO, along with the Florida, Michigan, 
Montana, North Dakota, and Vermont DOTs argued that expanding 
performance measures by segregating specific types of fatalities and 
serious injuries at the national level would be inappropriate and 
contrary to MAP-21 and against States' desire to focus national 
performance efforts on a limited number of measures to implement 23 
U.S.C. 150. Finally, many of these same commenters, as well as Texas 
DOT, pointed out that non-motorized exposure data are not sufficient to 
support these measures.
    The Michigan DOT and AASHTO each submitted a letter after the close 
of the comment period, in reaction to the Explanatory Statement 
accompanying the ``Consolidated and Further Continuing Appropriations 
Act, 2015.'' These letters re-iterated earlier AASHTO comments, 
emphasizing that performance measures should not focus on particular 
issues, which would limit States' ability to use a comprehensive, data 
driven approach to improving safety; any non-motorized performance 
measure should be based on currently available data-counts of non-
motorist fatalities and serious injuries that occur on public roadways 
and involve a motor vehicle; and non-motorized performance measures 
should not be included in the assessment of whether a State has met or 
made significant progress toward meeting its performance targets. 
Michigan DOT also suggested that if a non-motorized performance measure 
were required, fatality data should be combined with serious injury 
data to reduce the volatility of small data sets.
    However, 99 percent of the letters submitted to the docket 
supported a non-motorized performance measure. Commenters who expressed 
support included letters organized by the LAB (11,175 commenters in 
general agreement), Smart Growth America (1,513 identical letters), and 
the SRTS (467 letters); as well as letters from Transportation for 
America, ATSSA, AARP, the American Heart Association, and 3 State DOTs 
(Oregon, Virginia, and Washington State). The Regional Transportation 
Council and the North Central Texas Council of Governments, Puget Sound 
MPO, Metropolitan Planning Organization for Portland, Oregon, and 
Fairbanks Metropolitan Area Transportation System all expressed support 
for a process to establish performance measures for non-motorized 
travel. These commenters expressed concern that while total roadway 
fatalities have been in decline over the past decade, non-motorized 
fatalities have been on the rise. Moreover, supporters of a non-
motorized performance measure noted in their comments to the docket, 
that in 2012, 16 percent of all national roadway fatalities were non-
motorized users and claim that less than 2 percent of HSIP funds were 
obligated on non-motorized projects. Specifically, the LAB, Smart 
Growth America, SRTS, Transportation Choices Coalition, Idaho Walks, 
Adventure Cycling, Washington Bikes, the National Association of 
Realtors, AARP, the National Association of County and City Health 
Officials (NACCHO), other advocacy groups and their supporters, and 
Nashville MPO believe Congress amended the HSIP in MAP-21 to clearly 
support projects, activities, plans, and reports for non-motorized 
safety. They state, for example, the HSIP was amended in MAP-21, in 23 
U.S.C. 148(c)(2)(A)(vi) to improve the collection of data on non-
motorized crashes, and 23 U.S.C. 148(d)(1)(B) requires that States 
address motor vehicle crashes that involve a bicyclist or pedestrian. 
The commenters concluded that HSIP funding is explicitly eligible for 
projects addressing the safety needs of bicyclists and pedestrians. The 
LAB comments addressed the concern in the NPRM that there may be ``too 
few'' recorded non-motorized fatalities to make a performance measure 
statistically valid or useful by noting that in 3 out of 5 States, non-
motorized fatalities already make up more than 10 percent of their 
total fatalities.
    Supporters of SRTS letters note that children and families should 
have the option to safely walk or bicycle to and from school, yet too 
many communities lack the basic infrastructure necessary to make that 
choice safe or possible. They argue that non-motorized measures would 
lead to improvements in this area, and, without this change, States 
will continue to overlook bicycle and pedestrian deaths, continue to 
spend HSIP funds nearly exclusively on motorized safety issues, and 
bicycle and

[[Page 13890]]

pedestrian deaths will continue to rise year after year. The Smart 
Growth America comments suggest that although data are not perfect, 
States already track non-motorized crashes and establishing targets 
would support significant safety improvements in the coming years.
    A group of eight U.S. Senators also submitted a letter to the 
Secretary of Transportation expressing concern that the NPRM did not 
propose a measure for non-motorized users and encouraging the DOT to 
reevaluate the NPRM to address the safety of all public road users in 
the final rule by creating separate measures for motorized and non-
motorized road users. Finally, the Explanatory Statement accompanying 
the ``Consolidated and Further Continuing Appropriations Act, 2015,'' 
published in the Congressional Record,\12\ directs FHWA to ``establish 
separate, non-motorized safety performance measures for the [HSIP], 
define performance measures for fatalities and serious injuries from 
pedestrian and bicycle crashes, and publish its final rule on safety 
performance measures no later than September 30, 2015.''
---------------------------------------------------------------------------

    \12\ Congressional Record, December 11, 2014, page H9978, 
https://www.congress.gov/crec/2014/12/11/CREC-2014-12-11-bk2.pdf.
---------------------------------------------------------------------------

    The FHWA includes in this final rule a non-motorized safety 
performance measure. This measure is established after considering a 
broad range of alternatives to address non-motorized safety, while 
maintaining the data-driven nature of the HSIP and the TPM program 
overall.
    For example, FHWA considered a requirement for States to simply 
report on non-motorized safety without further comment or evaluation. 
This requirement would meet the concerns of AASHTO and many State DOTs 
by not adding another performance measure and has the advantage of 
keeping the regulatory requirement for non-motorized transportation 
safety simple. The FHWA concluded, however, that requiring States only 
to report would not improve non-motorized transportation safety, 
particularly since, beginning with the Fiscal Year (FY) 2015 HSPs, 
States must include an additional core outcome measure and establish 
targets for bicycle fatalities \13\ (complementing the core outcome 
measure and targets for the number of pedestrian fatalities measure, 
which has been included in the HSPs since FY 2010). Reporting non-
motorized performance data in the HSIP reports would provide a visible, 
publicly accessible platform to demonstrate the progress States are 
making in improving non-motorized transportation safety. However, 
reporting alone will not result in the same level of accountability as 
performance targets. The FHWA believes any requirement should go beyond 
reporting, particularly since much of the information is already 
available in HSP reports, to have an impact on how infrastructure 
investment decisions are made in this performance area. As a result, a 
requirement for States to only report non-motorized performance data, 
without further comment or evaluation, is not adopted in the final 
rule.
---------------------------------------------------------------------------

    \13\ An additional core outcome measure for bicycle fatalities 
was added after NHTSA's publication of the Interim Final Rule 
(Uniform Procedures for State Highway Safety Grant Programs, Interim 
final rule, 78 FR 4986 (January 23, 2013) (to be codified at 23 CFR 
part 1200)), and is available at https://www.ghsa.org/html/resources/planning/.
---------------------------------------------------------------------------

    The FHWA is aware that the magnitude and characteristics of non-
motorized safety performance varies from State to State. Each State 
uses a data-driven approach to consider and account for its particular 
safety issues in its SHSP. Twenty-five States included pedestrians, 
bicyclists and/or vulnerable road users as emphasis areas in their 
SHSPs as of 2014. Therefore, FHWA contemplated establishing a threshold 
to identify only those States where non-motorized safety performance 
supports requiring a State to focus additional attention and action on 
non-motorized safety. The FHWA considered how to make the threshold 
data-driven so that a State in which non-motorized safety problems are 
not particularly high could focus attention and resources on aspects of 
safety that its data indicate is most important, but would require some 
States to establish targets for non-motorized safety. The FHWA 
considered a number of methodologies for establishing the threshold, 
including: (a) The national average of non-motorized fatalities, (b) 
the percent of a State's total fatalities and serious injuries, and (c) 
the non-motorized fatality rate by population. The FHWA also considered 
exempting States that demonstrated improvements in past non-motorized 
safety performance from assessment of the measure. Ultimately, FHWA 
determined that each methodology for establishing a threshold could be 
subject to criticism because the threshold is either too high--so not 
enough States are required to take action--or too low--including too 
many States. In keeping with FHWA's principle articulated in the NPRM 
to ``ensure for consistency,'' FHWA does not include a threshold to 
avoid different requirements for different States.
    After reviewing the comments and information received that 
addressed the questions in the NPRM on how DOT could address a non-
motorized performance measure, FHWA establishes in this final rule an 
additional safety performance measure: the number of combined non-
motorized fatalities and non-motorized serious injuries in a State. 
This performance measure is not identical to the measures in the HSP, 
as the HSP includes separate measures for the number of pedestrian 
fatalities and the number of bicycle fatalities. The single non-
motorized performance measure included in this final rule will be 
treated equal to the other 4 measures proposed in the NPRM and included 
in this final rule: (1) Total number of fatalities; (2) rate of all 
fatalities per 100 million VMT; (3) total number of serious injuries; 
and (4) rate of all serious injuries per 100 million VMT. All five 
safety performance measures are subject to the requirements of this 
rule, including establishing targets, reporting, and FHWA's assessment 
of whether a State has met or made significant progress toward meeting 
its targets.
    The FHWA establishes the additional non-motorized performance 
measure to accomplish a number of objectives:

    1. Encourage all States to address pedestrian and bicycle 
safety;
    2. Recognize that walking and biking are modes of transportation 
with unique crash countermeasures distinct from motor vehicles; and
    3. Address the increasing trend in the total number of 
pedestrian and bicyclist fatalities in the United States. These 
fatalities have shown a 15.6 percent increase from 4,737 in 2009 to 
5,478 in 2013. In addition, the percentage of total fatalities 
involving non-motorists has increased from 13.3 percent in 2005 to 
17.1 percent in 2013.\14\
---------------------------------------------------------------------------

    \14\ https://www.nhtsa.gov/FARS.

    Furthermore, establishing an additional non-motorized performance 
measure supports President Obama's `Ladders of Opportunity'\15\ 
priority. The Ladders of Opportunity program at DOT helps ensure that 
the transportation system provides reliable, safe, and affordable 
options for reaching jobs, education, and other essential services.\16\ 
As part of DOT's program, the Secretary of Transportation has an 
initiative that focuses on making streets and communities safer for 
residents that do not or cannot drive. Through this

[[Page 13891]]

initiative, DOT encourages transportation agencies to consider the 
needs and safety of pedestrians and bicyclists when planning highways. 
Establishing a non-motorized performance measure is consistent with 
these priorities and initiatives as it focuses more attention on 
transportation safety problems for some of those residents that do not 
or cannot drive.\17\ It is also consistent with the Explanatory 
Statement accompanying the ``Consolidated and Further Continuing 
Appropriations Act, 2015.''
---------------------------------------------------------------------------

    \15\ https://www.whitehouse.gov/issues/urban-and-economic-mobility.
    \16\ https://www.dot.gov/briefing-room/secretary-foxx-announces-ladderstep-technical-assistance-program.
    \17\ Safer People, Safer Streets: Summary of U.S. Department of 
Transportation Action Plan to Increase Walking and Biking and Reduce 
Pedestrian and Bicyclist Fatalities, September 2014, https://www.dot.gov/sites/dot.gov/files/docs/safer_people_safer_streets_summary_doc_acc_v1-11-9.pdf.
---------------------------------------------------------------------------

    The addition of a non-motorized performance measure addresses the 
concerns of the majority of comments to the NPRM by requiring all 
States and MPOs to establish targets for non-motorized safety. It adds 
only one additional performance measure to the required set of safety 
measures, thereby still limiting the overall total number of measures, 
addressing a concern of AASHTO and some State DOTs. As part of the 
overall TPM framework, this additional performance measure increases 
the accountability and transparency of the Federal-aid highway program 
and allows for improved project decisionmaking with respect to non-
motorized safety. The data used for this additional measure address 
State DOTs' and FHWA's concern about small numbers of non-motorized 
fatalities in some States by combining non-motorized fatalities and 
serious injuries together in one measure. The combined total of non-
motorized fatalities and serious injuries is not insignificant in any 
State. This approach is supported by Michigan DOT's comments submitted 
after the close of the comment period. A single combined non-motorized 
fatality and serious injury performance measure reduces the additional 
burden for States and MPOs compared to two separate non-motorized 
performance measures.
    The AASHTO and supporters of AASHTO's comments on this issue 
indicated that adding non-motorized performance measures to the overall 
safety performance measures could limit a State's ability to use a 
data-driven approach to decide where to invest limited resources and 
could distort the analysis of whether a State met or made significant 
progress toward meeting its non-motorized safety targets, since these 
fatalities and serious injuries would be counted in both sets of 
performance measures. The FHWA disagrees. The additional combined non-
motorized fatality and serious injury performance measure will not 
``double count'' non-motorized fatalities and serious injuries or 
distort the assessment of whether a State has met or made significant 
progress toward meeting its targets. Because this performance measure 
combines fatalities and serious injuries, it is different from the 
other safety performance measures. For example, when the number of non-
motorized serious injuries increases in a State, the total number and 
rate of serious injuries may or may not increase as well. The impact of 
the increase in non-motorized serious injuries will be different on 
each of the three performance measures that include serious injuries: 
The number of serious injuries; the rate of serious injuries; and, the 
number of non-motorized fatalities and non-motorized serious injuries. 
The example below illustrates this point using data from Kansas (Table 
1). The Kansas data are drawn from FARS, NHTSA's State Data System \18\ 
(for serious injury data), and HPMS.
---------------------------------------------------------------------------

    \18\ https://www.nhtsa.gov/Data/State+Data+Programs/SDS+Overview.

                                                    Table 1--Kansas Fatality and Serious Injury Data
--------------------------------------------------------------------------------------------------------------------------------------------------------
                           Annual data                               2005       2006       2007       2008       2009       2010       2011       2012
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-Motorized Serious Injuries..................................        105         98         91         79         88         95         97        104
Non-Motorized Fatalities........................................         28         29         22         25         27         16         16         33
                                                                 ---------------------------------------------------------------------------------------
    Total Non-Motorized Fatalities & Serious Injuries...........        133        127        113        104        115        111        113        137
Total Serious Injuries..........................................      1,874      1,746      1,811      1,709      1,670      1,717      1,581      1,592
Total Serious Injury Rate.......................................       6.33       5.78       6.03       5.75       5.66       5.74       5.27       5.21
VMT (per 100 Million)...........................................     296.21     302.15     300.48     297.27     294.97     299.00     300.21     305.72
--------------------------------------------------------------------------------------------------------------------------------------------------------


 
           5-Year rolling average data               2005-2009       2006-2010       2007-2011       2008-2012
----------------------------------------------------------------------------------------------------------------
Non-Motorized Fatalities & Serious Injuries.....           118.4           114.0           111.2           116.0
    % Change....................................  ..............          -3.72%          -2.46%           4.32%
Total Serious Injuries..........................         1,762.0         1,730.6         1,697.6         1,653.8
    % Change....................................  ..............          -1.78%          -1.91%          -2.58%
Total Serious Injuries Rate.....................           6.327           5.779           6.027           5.749
    % Change....................................  ..............          -8.66%           4.30%          -4.61%
----------------------------------------------------------------------------------------------------------------

In this example, the number of combined non-motorized fatalities and 
non-motorized serious injuries increases from the 2007-2011 5-year 
rolling average to the 2008-2012 average. In the same time frame, the 
serious injury number and serious injury rate measures both decrease. 
States will need to consider how their programs, projects, and 
strategies will impact the number of non-motorized serious injuries and 
factor that impact into their methodology for establishing their safety 
performance targets each year.

    As noted in the comments by AASHTO and supporters of the AASHTO 
comments, FHWA recognizes that fatal and serious injury crashes 
involving only non-motorists (e.g., a bicyclist crashing into a 
pedestrian) are not included in FARS or many State motor vehicle crash 
databases. There is no single national or State-by-State data source 
that includes fatal or serious injury crashes only involving non-
motorists. Because FARS and the State motor vehicle crash databases 
already exist and are the data sources for the other safety performance 
measures, FHWA uses them as the data sources for the non-motorized 
performance measure. The FHWA recognizes that the calculation for the 
non-motorized performance measure may not include a small number of 
fatal and serious injury crashes involving only non-motorists

[[Page 13892]]

because FHWA is relying on these data sources. The AASHTO comments 
submitted after the close of the comment period support using FARS and 
State motor vehicle crash databases as the source for any potential 
non-motorized safety performance measure data, since other crashes may 
not be recorded. The AASHTO's position on this issue is thus consistent 
with the requirement in this rule.
    The FHWA recognizes that non-motorized fatalities and non-motorized 
serious injuries will now be accounted for in more than one performance 
measure; however, FHWA believes that establishing this separate 
performance measure for the number of non-motorized fatalities and 
serious injuries will help States focus greater attention on the safety 
needs of these transportation users, can be accounted for in how the 
States and MPOs evaluate their data and select their investment 
priorities, and will contribute to decreases in the total number of 
fatalities and serious injuries.
    The Consortium for People with Disabilities and America Walks 
suggested that FHWA consider including non-motorized and motorized 
wheelchairs and other mobility devices such as scooters in a 
performance measure. The FHWA agrees and defines the non-motorized 
performance measure to include the categories of persons classified as 
pedestrians and bicyclists as well as those using motorized and non-
motorized wheelchairs and personal conveyances. The definition of the 
non-motorized performance measure is also consistent with 23 U.S.C. 
217(j) which defines `pedestrian' as ``. . . any person traveling by 
foot and any mobility impaired person using a wheelchair'' and defines 
`wheelchair' as ``a mobility aid, usable indoors, and designed for and 
used by individuals with mobility impairments, whether operated 
manually or motorized.''
    The 23 U.S.C. 150 stipulates that the Secretary establish 
``measures for States to use to assess serious injuries and fatalities 
per VMT.'' The Atlanta Regional Commission (ARC), State of New York 
Department of Transportation, NYSAMPO, and several individuals 
commented that VMT is the wrong exposure variable for a rate-based 
measure for non-motorized modes. The New York agencies suggested that 
FHWA commence a research effort to determine the most appropriate 
method for calculating non-motorized based crash rates. Tennessee DOT 
indicated that it does not collect miles traveled for non-motorized 
users; however, some MPOs in Tennessee collect this information. 
Tennessee cautioned that this could cause unbalanced and nonmatching 
targets or goals. The MARC commented that it disaggregates crash data 
by non-motorized type through work with its regional transportation 
safety coalition. The MARC also indicated that it currently works with 
its State DOTs to collect and report non-motorized fatality and serious 
injury data and to obtain motorized VMT, but do not have similar rate 
data for non-motorized travel. Oregon and New York City DOT expressed 
support for creation of a non-motorized safety performance measure that 
would count the rate of fatalities for bicyclists and pedestrians 
compared to population, not VMT. The LAB, Smart Growth America, and 
other supporters of a non-motorized performance measure recognize that 
there is no national dataset for a non-motorized rate measure. These 
commenters argued that adopting a non-motorized safety performance 
measure would create the expectation and incentive to collect this 
data. The Michigan DOT and AASHTO, in comments submitted after the 
close of the comment period, reiterated that a rate-based measure for 
non-motorized users is not appropriate at this time.
    The FHWA agrees that VMT is not an appropriate exposure metric for 
a non-motorized performance measure and that there is no consensus on a 
national or State-by-State data source for bicycling and walking 
activity upon which to determine a rate in this rule. As a result, FHWA 
does not include a rate-based non-motorized measure at this time. The 
DOT is committed to improving the quality of data on non-motorist 
transportation and is engaged in a broad range of data-related 
activities concerning non-motorist transportation.\19\ This work, such 
as including guidance for collecting pedestrian and bicyclist count 
information in the most recent FHWA Traffic Monitoring Guide,\20\ 
should help pave the way for better methods to estimate exposure to 
risk for pedestrians and bicyclists. The FHWA encourages States and 
MPOs to use these resources in order to develop and use exposure 
measures for non-motorized travel that will inform pedestrian and 
bicycle safety initiatives.
---------------------------------------------------------------------------

    \19\ Information about on-going USDOT activities is available at 
https://www.dot.gov/bicycles-pedestrians.
    \20\ FHWA ``Traffic Monitoring Guide'': https://www.fhwa.dot.gov/policyinformation/tmguide/.
---------------------------------------------------------------------------

Met or Made Significant Progress Toward Meeting Targets Evaluation
    In the NPRM, FHWA proposed a two-step process for determining 
whether a State met or made significant progress toward meeting its 
performance targets. The first step was to determine if each 
performance target had been met or if a State had made significant 
progress toward meeting each target based on a prediction interval 
around the projection of a historical trend line. The second step 
determined if a State had met or made significant progress toward 
meeting at least 50 percent of its performance targets, including 
optional targets. If they did, a State would be determined to have made 
``overall significant progress.'' The FHWA specifically asked 
stakeholders to comment on the appropriateness of the trend line and 
prediction interval methodologies and whether 50 percent is the 
appropriate threshold for determining if a State had ``overall made 
significant progress'' toward meeting its performance targets.
    The FHWA has evaluated the arguments made by commenters regarding 
the methodology for assessing whether a State DOT made significant 
progress, including the comment discussed earlier that the proposed 
methodology conflicted with the ``increased accountability and 
transparency'' principle, and has concluded that it is necessary and 
appropriate to revise this part of the regulation. The following 
summarizes the comments regarding the proposed significant progress 
methodology. In response to the comments below, FHWA developed a set of 
criteria to help develop and evaluate the methodology for assessing 
whether a State DOT made significant progress toward meeting its 
targets.
    The AASHTO, New York Metropolitan Transportation Council, NYSAMPO, 
ARC, and Transportation for America expressed disagreement with what 
they considered to be a complex method for determining significant 
progress. Eight U.S. Senators, AARP, Adventure Cycling, ATSSA, America 
Walks, Boston Public Health Commission, California Walks, Living 
Streets Alliance, Rails-to-Trails Conservancy, Smart Growth America and 
SRTS and their supporters, Transportation for America, Tri[hyphen]State 
Transportation Campaign (New York, New Jersey and Connecticut), and 
Walk Austin were among the commenters who suggested that States should 
be held to a higher level of accountability than meeting 50 percent of 
their targets for the ``overall significant progress'' determination 
proposed in the NPRM. The AASHTO, Delaware Valley Regional Planning 
Commission (DVRPC), NYSAMPO, Shasta Regional Transportation Agency 
(SRTA), and Delaware, Connecticut, Iowa, Kentucky,

[[Page 13893]]

Missouri, New York, Ohio, Oregon, Pennsylvania, and Vermont State DOTs 
agreed with the 50 percent threshold; while MARC and Arkansas, 
Illinois, Louisiana, New York, Pennsylvania, and South Dakota DOTs 
specifically expressed a desire to account for unique or extenuating 
circumstances. The ATSSA, NACCHO, Smart Growth America, Transportation 
Choices Coalition, and Transportation for America argued that meeting 
only 50 percent of targets is not stringent enough and expressed strong 
support for significant progress to be defined as meeting at least 75 
percent of targets. Further, this group of commenters called for a 
methodology that is simplified, not based on historical trend lines, 
and that holds States more accountable for reducing fatalities and 
serious injuries by not including a cushion for States that fail to 
meet or make significant progress toward meeting their targets. The 
AARP, America Walks, BikeWalkLee, Boston Public Health Commission, 
Idaho Walk Bike Alliance, LAB, Lebanon Valley Bicycle Coalition, Living 
Streets Alliance, Rails-to-Trails Conservancy, SRTS, Trailnet, Trust 
for America's Health, Walk Austin, and their supporters also argued 
that significant progress should not include outcomes that result in an 
increase in the number or rate of fatalities or of serious injuries. 
The FHWA agrees that the methodology should hold States to a high level 
of accountability. The methodology should also avoid determining that 
significant progress was made when the number or rate of fatalities or 
of serious injuries increased. The methodology must also support the 
national safety goal to achieve a significant reduction in fatalities 
and serious injuries.
    The AASHTO, Arkansas, Colorado, Michigan, Missouri, Montana, New 
York, Ohio, Oklahoma, Oregon, Rhode Island, Texas, Utah State DOTs, 
Fairbanks Metropolitan Area Transportation System, Nashville MPO, 
NACCHO, and NYSAMPO, as well as the Association of Metropolitan 
Planning Organizations (AMPO), Smart Growth America and Transportation 
Choices Coalition commented that the determination of significant 
progress should not be based on historical trends. The FHWA agrees that 
the methodology should not be based on historical trends and should be 
associated with the targets the State establishes.
    The AASHTO and Kentucky, Ohio, Oregon, and Rhode Island DOTs also 
advocated that the significant progress methodology should not 
discourage States from establishing aggressive targets and that the 
process should be flexible so as to not unduly impose the ``penalty.'' 
The FHWA agrees that the methodology should not discourage aggressive 
targets.
    The ATSSA, Delaware, Kentucky, and Washington State DOTs expressed 
support for the prediction interval, with Washington State DOT citing 
that it is necessary and appropriate to account for the normal variance 
in crashes. The AARP, ARC, Trust for America's Health, several 
bicycling and walking organizations including America Walks, LAB, 
Lebanon Valley Bicycle Coalition, BikeWalkLee, Trailnet, and Idaho Walk 
Bike, the Tri[hyphen]State Transportation Campaign Alliance (New York, 
New Jersey and Connecticut), and New York, Oregon, and Virginia DOTs 
expressed opposition to the prediction interval analysis proposed in 
the NPRM, stating that it was too complex, too confusing, or provided 
too great a cushion for States to not meet a target. The FHWA agrees 
that the prediction interval is too complex and that the methodology 
should be simple, understandable, and transparent.
    Based on these comments, FHWA developed criteria to evaluate 
methodologies to assess whether a State met or made significant 
progress toward meeting its targets. The methodology should: (a) Hold 
States to a higher level of accountability; (b) not discourage 
aggressive targets; (c) support the national goal to achieve a 
significant reduction in fatalities and serious injuries; (d) be fair 
and consistent/quantitative; (e) be simple, understandable, and 
transparent; (f) not be based on historical trends; and (g) be 
associated with the targets. The FHWA believes that using these 
criteria to develop a revised methodology to assess whether a State has 
met or made significant progress toward meeting its targets results in 
an approach that addresses the commenters' concerns.
    With these criteria in mind, FHWA considered several options to 
determine whether a State has met or made significant progress toward 
meeting its targets: (1) State meets a defined range around each 
target; (2) State meets a range around a trend line for the performance 
measure; (3) State uses their own pre-determined and approved 
methodology; (4) State meets some percentage of all targets; and (5) 
State performs better than a baseline for a performance measure. Some 
of these methodologies were submitted to the docket.
    First, FHWA eliminated the first and second options that would 
allow a State to meet a range around a target or a range around a trend 
line. Developing a range around targets or a trend line, as was 
proposed in the NPRM, would require FHWA to define the range and 
evaluate States using complex mathematical analyses. Such an effort was 
strongly criticized and would not be consistent with the preference for 
a simpler methodology.
    Arkansas, Colorado, and Michigan State DOTs suggested that they 
should be able to develop their own methodology for assessing whether a 
target was met or significant progress was made. To meet the principle 
``to ensure for consistency,'' FHWA did not consider the third option 
where it would use a different methodology for each State. However, 
FHWA did evaluate a variation of the third option that would allow 
States to select a methodology from a suite of options approved by 
FHWA. The State's selected methodology would be approved by FHWA in 
much the same manner as FHWA approves a State's definition for ``high 
risk rural roads'' in the High Risk Rural Roads Special Rule (23 U.S.C. 
148(g)). The FHWA carefully weighed this option against the criteria. 
This option does not seem to dis-incentivize States from setting 
aggressive targets and could incentivize some States to establish even 
more aggressive targets if the methodology were to reduce the risk of 
States failing to make significant progress. This option, however, does 
not necessarily further the national goal to significantly reduce 
traffic fatalities and serious injuries. This option also does not meet 
the criteria for being simple/understandable/transparent since it would 
be difficult, if not impossible, for the general public to follow the 
different methodologies and related assessments for each State. Lastly, 
it would not be possible for FHWA to tell a ``national story'' if 
States were to use different significant progress methodologies--
contrary to one of FHWA's principles considered in the development of 
these regulations.\21\ For these reasons, FHWA did not adopt this 
option in the final rule.
---------------------------------------------------------------------------

    \21\ NPRM for the National Performance Management Measures; 
Highway Safety Improvement Program 79 FR 13846, 13852 (proposed 
March 11, 2014) https://www.gpo.gov/fdsys/pkg/FR-2014-03-11/pdf/2014-05152.pdf.
---------------------------------------------------------------------------

    The FHWA considered the fourth option--State meets some percentage 
of all targets--to be viable. This option is simple and was recommended 
by several commenters, including AASHTO, nine State DOTs, DVRPC, SRTA, 
NYSAMPO, ATSSA, NACCHO, Smart Growth America, and Transportation for 
America. This option is easy to understand and implement, does not 
require a complex

[[Page 13894]]

mathematical analysis, and does not require 10 years of historical data 
(which some States commented would be difficult to obtain). Further, 
this option is clearly associated with the targets the State 
establishes and is not based on the historical trend in the State. 
Accordingly, FHWA concluded that it is appropriate to assess whether a 
State has met or made significant progress toward achieving its targets 
based on the State meeting or making significant progress toward 
meeting a defined percentage of its targets.
    In further considering the fourth option, FHWA evaluated the 
responses to the NPRM request for comments on whether 50 percent is the 
appropriate threshold for determining whether a State has overall 
achieved or made significant progress toward achieving its performance 
targets. The FHWA agrees with the commenters who stated that the 50 
percent threshold is too low. The AARP suggested that States be 
required to meet all targets. Transportation for America, Nashville 
MPO, NACCHO, Smart Growth America, Transportation Choices Coalition, 
and Ryan Snyder Associates also suggested that 100 percent of targets 
should be met, but recognized that some flexibility should be provided.
    The MAP-21 requires the Secretary to make a determination whether a 
State has ``met or made significant progress toward meeting'' its 
targets.\22\ To satisfy this mandate, FHWA has determined that States 
must meet or make significant progress toward meeting four out of five 
targets. (The addition of the non-motorized performance measure in this 
final rule expands the number of required performance targets from the 
four proposed in the NPRM to five.) Requiring States to meet 100 
percent of targets is not consistent with the ``or made significant 
progress toward meeting'' targets provision in 23 U.S.C. 148(i). Four 
out of five targets (80 percent) is more than the AASHTO and State DOT 
supported NPRM proposal to meet 50 percent of targets and similar to 
the 75 percent recommendation advocated by many commenters.
---------------------------------------------------------------------------

    \22\ 23 U.S.C. 148(i).
---------------------------------------------------------------------------

    The AASHTO and Michigan DOT, in comments submitted after the close 
of the comment period, argued that non-motorized performance measures 
should not be considered in the determination of whether a State has 
met or made significant progress toward meeting targets because 
including them would limit a State's ability to use a comprehensive, 
data-driven approach to determine the best set of safety investments to 
achieve performance targets and because MAP-21 does not require such 
measures. As explained earlier, FHWA agrees with many commenters that 
it is important to hold States accountable to improve non-motorized 
safety. Including non-motorized performance in the assessment of 
whether a State met or made significant progress toward meeting targets 
will ensure that these measures have an impact on how investment 
decisions are made in this performance area, will improve non-motorized 
transportation safety, and will provide a publicly available platform 
to show whether the progress States are making in non-motorized 
transportation safety. Further, including non-motorized performance 
targets in FHWA's assessment of significant progress is consistent with 
the statutory requirements in 23 U.S.C. 150 and 148(i). The FHWA is 
establishing the non-motorized measure as part of its mandate in 23 
U.S.C. 150(c)(4) to establish measures for States to use to assess the 
number of serious injuries and fatalities. For measures established by 
FHWA, including those identified in 23 U.S.C. 150(c)(4), States are 
required to establish targets reflecting these measures. 23 U.S.C. 
150(d). Where States are required to establish targets, those targets 
are subject to the assessment under 23 U.S.C. 148(i) (requiring a 
determination of whether a State has ``met or made significant progress 
toward meeting the performance targets of the State established under 
section 150(d)''). Therefore, FHWA includes the non-motorized 
performance measure in the assessment of whether a State met or made 
significant progress toward meeting targets.
    Finally, FHWA also considered the fifth option: Whether significant 
progress should be defined as an outcome that is better than the 
State's performance for some year or years prior to when the target was 
established. This option supports several of FHWA's evaluation 
criteria, as it is simple and encourages States to establish aggressive 
targets, while not subjecting them to additional requirements if they 
fail to meet the aggressive target when their performance still 
improves. It also supports the national goal to reduce traffic 
fatalities and serious injuries.\23\ Although this option does not 
associate the significant progress determination with the target the 
State establishes, it does further the national goal and the purpose of 
the HSIP, encourages aggressive targets, and acknowledges States that 
have achieved safety improvement. Therefore, FHWA includes this option 
in this final rule. This final rule allows States that do not meet a 
target to be considered as having made significant progress toward 
meeting the target if the outcome for that performance measure is 
better than the State's performance for the year prior to the year in 
which target was established (i.e., baseline safety performance).
---------------------------------------------------------------------------

    \23\ 23 U.S.C. 150(b)(1).
---------------------------------------------------------------------------

    For example, Table 2 presents a fictitious State's historical data, 
its Calendar Year (CY) 2018 targets, and FHWA's assessment of those 
targets. As targets are established for CY 2018 in the HSIP report that 
is due in August 2017, ``baseline safety performance'' is the 
performance data for CY2016. That is, the 5-year rolling average ending 
in CY2016 for each performance measure. (As the baseline performance 
year changes with the target year, if the example were for CY 2019 
targets, ``baseline safety performance'' would be the performance data 
for CY 2017).
    In this example, the only target the State met is its non-motorized 
safety performance target. This target is not evaluated further. The 
FHWA then assesses whether the State made significant progress for the 
other four performance measures, meaning whether the actual outcome for 
2014-2018 was better than the baseline performance--2012-2016--for the 
Number of Fatalities, Number of Serious Injuries, Fatality Rate and 
Serious Injuries Rate performance measures. State performance did not 
improve for the Fatality Rate measure, but did improve for the other 
three. Therefore, for this example, FHWA would determine that the State 
met or made significant progress toward meeting its CY 2018 targets 
since 4 of the 5 targets were either met or were better than the 
baseline safety performance.

[[Page 13895]]



                                                                 Table 2--Example of the Data and Target Assessment Methodology
                                                                                   [For illustrative purposes]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 5 Year rolling averages
                                     -------------------------------------------------------------------------------                                                             Met or made
        Performance measures                                                       2012-2016                            2018      Target achieved?         Better than           significant
                                      2008-2012  2009-2013  2010-2014  2011-2015    baseline   2013-2017  2014-2018    target                               baseline?             progress?
                                                                                  performance
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Fatalities................      501.2      486.6      478.0      476.0       474.0       473.0      472.4      468.0  No..................  Yes.................  Yes.
Fatality Rate.......................      1.052      1.018      1.000      0.994       0.988       0.990      0.990      0.980  No..................  No.
Number of Serious Injuries..........    2,740.8    2,613.6    2,517.0    2,447.8     2,310.4     2,219.2    2,185.6    2,160.0  No..................  Yes.
Serious Injury Rate.................      5.764      5.476      5.272      5.116       4.822       4.644      4.584      4.572  No..................  Yes.
Number of Non-motorized Fatalities        126.2      118.0      116.8      115.2       113.2       110.0      109.4      110.0  Yes.................  N/A.
 and Serious Injuries.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

This option is similar to the significant progress methodology that 
FHWA proposed to assess pavement and bridge condition targets where an 
improvement above baseline is considered significant progress.\24\

    \24\ Assessing Pavement Conditions and Bridge Conditions for the 
Second National Highway Performance Program Management Measures; 
NPRM 80 FR 326 (proposed January 5, 2015)  https://www.gpo.gov/fdsys/pkg/FR-2015-01-05/pdf/2014-30085.pdf.
---------------------------------------------------------------------------

    In addition to the five options discussed above, FHWA considered 
three alternative methodologies that were suggested in public comments. 
These include: (1) Providing additional flexibility for top performing 
States; (2) allowing a State to submit evidence of extenuating 
circumstances outside the State DOT's control that contributed to the 
State not meeting its targets; and (3) assessing significant progress 
based on performance over a number of years, rather than annually.
    The AASHTO suggested FHWA consider allowing certain top performing 
States to be exempt from the assessment regarding meeting or making 
significant progress toward meeting a target if a condition was met. 
Idaho, North Dakota, Michigan, Minnesota, Missouri, Montana, North 
Dakota, Oregon, Virginia, and Wyoming DOTs specifically stated that the 
proposed NPRM methodology may not be appropriate for all States, 
especially those that have already made large gains in reducing fatal 
and serious injury crashes. To address these comments, FHWA considered 
exempting a certain number of top performing States or States that had 
made large gains, a certain percentage of the States that had performed 
best in the past, or exempting the States that contribute the most 
toward the national goal (e.g. those States that reduce the largest 
number of fatalities or serious injuries). The FHWA determined that 
such options would be difficult to implement and would not meet the 
evaluation criteria. Excluding some top performing States would not 
relate the target achievement and significant progress determination to 
the State's target, since the top performing States would not be 
assessed at all. In addition, this option would not be simple, 
understandable, or transparent. Further, this option could place States 
in competition with each other since only the ``top performing'' States 
would benefit from this provision. This option could also be unfair to 
States with smaller overall numbers of fatalities or serious injuries. 
The purpose of implementing a transformational national performance 
management program is to measure performance by and within each State, 
not to assess performance by States against other States.
    The AASHTO and States who supported AASHTO, along with individual 
comments from Arkansas, Illinois, Louisiana, New York, Pennsylvania, 
and South Dakota DOTs, and MARC specifically requested FHWA provide 
flexibility in the evaluation of meeting or making significant progress 
toward meeting targets for unforeseen circumstances or events outside 
of the State DOT's control. In addition, the Santa Barbara County 
Association of Governments (SBCAG) commented that many improvements to 
highway safety are outside the control of State DOTs and MPOs and 
depend on factors other than transportation infrastructure. The FHWA 
recognizes these concerns but emphasizes that State DOTs and MPOs are 
provided with HSIP funds annually to reduce fatalities and serious 
injuries on all public roads. The FHWA accounts for unforeseen events 
and factors outside of a State DOT's control in this rule in several 
ways. First, the 5-year rolling average provides a smoothing effect for 
variations in data that account, to a large degree, for such 
circumstances. Second, States that do not meet their target are 
considered as having made significant progress toward meeting the 
target if performance for that measure is better than performance for 
the year prior to the year in which the target was established. Third, 
only requiring a State to meet four out of five targets allows a State 
not to meet or make significant progress toward meeting an individual 
target for a performance measure or even be worse than the baseline, 
yet still result in a determination that the State has met or made 
significant progress toward meeting its performance targets. Fourth, 
States are encouraged to include the risk of unforeseen events and 
circumstances outside their control as part of their considerations as 
they establish targets. Because unforeseen events and factors outside 
of State DOT control are already considered as described above, FHWA 
has decided not to include an option for a State DOT to indicate that 
unforeseen circumstances should allow it or one of its targets to be 
exempt from target assessment.
    The SBCAG and the Transportation Agency for Monterey County also 
advocated for HSIP funds to be available for activities beyond HSIP 
projects, specifically to include projects that address driver 
behavior. Eligible use of HSIP funds is addressed in the HSIP 
regulation at 23 CFR part 924. Under 23 U.S.C. 148, an HSIP project is 
defined as strategies, activities, or projects on a public road that 
are consistent with a State SHSP and that either corrects or improves a 
hazardous road segment, location, or feature, or addresses a highway 
safety problem. Examples of projects are described in 23 U.S.C. 148(a). 
(See 23 CFR part 924).
    The FHWA also evaluated an option that would apply the target 
achievement and significant progress assessment after a certain number 
of years, rather than annually. Missouri and Rhode Island State DOTs 
commented that it would be difficult to adjust their State

[[Page 13896]]

Transportation Improvement Program (STIP) annually to implement a 
different set of safety improvements if they are determined to not have 
met or made significant progress toward meeting targets annually. They 
state that more time between assessment periods could improve a State's 
ability to determine what is working in its STIP and what is not, and 
to program/implement projects that have more impact to drive down 
fatality and serious injury numbers and rates. The FHWA did not pursue 
this approach because safety reporting is already required annually. 
For example, the HSIP reports submitted by States which include the 
fatality and serious injury data commensurate with the safety 
performance measures are transmitted on an annual basis. States 
establish targets and report on safety performance measures to NHTSA as 
part of their HSP and Highway Safety Annual Reports. Conducting an 
annual assessment is also consistent with the requirement to submit an 
annual implementation plan if the State fails to meet or make 
significant progress toward meeting its targets. If target achievement 
and significant progress were evaluated over a longer time period, the 
assessment would no longer align with the other safety reporting. In 
addition, waiting longer to assess whether States met or made 
significant progress toward meeting targets would not necessarily 
address the concerns about modifying the STIP, since the requirement 
for States subject to the 23 U.S.C. 148 provisions to obligate funds 
within the subsequent fiscal year is not based on how much time elapses 
between target assessments. In its analysis of docket comments and 
deliberations regarding changes to the methodology for assessing 
whether a State has met or made significant progress toward meeting its 
targets, FHWA was mindful of the provisions States must follow if FHWA 
determines they have not met or made significant progress toward 
meeting their performance targets. The 23 U.S.C. 148(i) requires States 
to: (1) Use a portion of their obligation authority only for HSIP 
projects and (2) submit an annual implementation plan that describes 
actions the State DOT will take to meet their targets. Both of these 
provisions apply each year after FHWA determines that the State has not 
met or made significant progress toward meeting its performance 
targets.
    The Virginia DOT interprets the statute to say that States have 2 
years to meet their targets, since FHWA must make a determination 
whether States have met or made significant progress toward meeting 
their targets by the date that is 2 years after the date of the 
establishment of the performance targets. As a result, Virginia DOT 
asked how FHWA could apply the provisions of 23 U.S.C. 148(i) if the 
determination were not made within 2 years of the date the target was 
established. In MAP-21, the 23 U.S.C. 148(i) stated ``If the Secretary 
determines that a State has not met or made significant progress toward 
meeting the performance targets of the State established under section 
150(d) by the date that is 2 years after the date of the establishment 
of the performance targets, . . .'' However, the FAST Act changed 23 
U.S.C. 148(i) to state, ``If the Secretary determines that a State has 
not met or made significant progress toward meeting the safety 
performance targets of the State established under section 150(d).'' 
Since the FAST Act removed the 2 year reference that Virginia DOT 
commented on, the statute can no longer be interpreted the way the 
Virginia DOT suggests. The FHWA believes that its interpretation is 
consistent with the plain language of the statute. Similar to what was 
proposed in the NPRM, FHWA establishes the safety performance measures 
as annual measures for a single performance year. The FHWA will 
determine whether a State has met or made significant progress toward 
meeting its targets when the outcome data for that calendar year is 
available and expects to notify States of its determination within 3 
months. As described earlier in the document, FHWA has been able to 
shorten its evaluation of State targets by 1 year. The proposed and 
final approach to assessing significant progress, including the timing, 
is consistent with the revised language under the FAST Act.

V. Section-by-Section Discussion of the General Information and Highway 
Safety Improvement Program Measures

1. Subpart A--General Information

Section 490.101 General Definitions
    In the NPRM, FHWA proposed several definitions for terms used in 
this regulation and in subsequent performance management regulations. 
The FHWA received only one substantive comment on this section: The 
County of Marin, CA Department of Public Works, supported including the 
definition for ``non-urbanized area'' to include rural areas as well as 
other areas that do not meet the conditions of an urbanized area. To 
ensure consistency with revised Sec.  490.209(b) specifying a single, 
collective non-urbanized area target, FHWA revises the definition for 
``non-urbanized area'' to clearly indicate that a non-urbanized area is 
a single, collective area comprising all of the areas in the State that 
are not ``urbanized areas'' defined under 23 U.S.C. 101(a)(34). The 
FHWA also removed the reference to 23 CFR 450.104 from the definition 
for clarity. The statutory definition provides for a State or local 
adjusted urbanized boundary based on the area designated by the Bureau 
of the Census, which is what FHWA intended for States to use when 
establishing the additional urbanized and/or non-urbanized targets, 
whereas 23 CFR 450.104 only references the Bureau of Census designated 
area.
Section 490.111 Incorporation by Reference
    The FHWA incorporates by reference the ``Model Minimum Uniform 
Crash Criteria (MMUCC) Guideline, 4th Edition (2012)'' for the 
definition of serious injuries, as described in Sec.  490.207(c). This 
guide presents a model minimum set of uniform variables or data 
elements for describing a motor vehicle crash. The Guide is available 
at: https://mmucc.us/sites/default/files/MMUCC_4th_Ed.pdf. In the NPRM, 
FHWA proposed the use of MMUCC, latest edition as part of Sec.  
490.207(c). Because the regulations now refer to a specific edition of 
MMUCC, rather than the ``latest edition,'' FHWA determined it was 
appropriate to incorporate by reference the specific edition. The 
MMUCC, 4th Edition was included on the NPRM docket.
    The FHWA also incorporates by reference the ``ANSI D16.1-2007, 
Manual on Classification of Motor Vehicle Traffic Accidents, 7th 
Edition'' for the definition of non-motorized serious injuries, as 
described in Sec.  490.205. The document is available from the National 
Safety Council, 1121 Spring Lake Drive, Itasca, Illinois 60143-3201, 
(https://www-nrd.nhtsa.dot.gov/Pubs/07D16.pdf). As discussed above, a 
non-motorized fatalities and non-motorized serious injuries performance 
measure has been added for this final rule.

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

Section 490.201 Purpose
    The FHWA includes a statement describing the general purpose of the 
subpart: To implement certain sections of title 23 U.S.C. that require 
FHWA to establish measures for State DOTs to use to assess the rate of 
serious injuries and fatalities and the number of serious injuries and 
fatalities. The Colorado

[[Page 13897]]

DOT suggested that FHWA reverse the order of the measures, thus listing 
the number of serious injuries and fatalities followed by the rate of 
each, in order to show first the importance of each person. The FHWA 
adopts the language, as proposed in the NPRM, stating the rate first 
followed by the number, in order to reflect the order of the 
performance measures as listed in MAP-21.
Section 490.203 Applicability
    As proposed in the NPRM, FHWA specifies that the safety performance 
measures are applicable to all public roads covered by the HSIP under 
23 U.S.C. 130 and 23 U.S.C. 148. The FHWA did not receive any 
substantive comments regarding this section and adopts the language in 
the final rule.
Section 490.205 Definitions
    In the NPRM, FHWA proposed several definitions for terms used in 
the regulation. The FHWA revises the final rule in several respects, 
resulting in the elimination of some terms and the addition of new 
terms. These changes are reflected in the definitions section and 
described below. In addition, FHWA revises some of the definitions to 
provide clarity based on docket comments.
    The FHWA adopts a definition for ``5-year rolling average'' because 
it is used to define the performance measures in this final rule. In 
the NPRM, FHWA noted that the 5-year rolling average is the average of 
five individual, consecutive annual points of data for each proposed 
performance measure (e.g., 5-year rolling average of the annual 
fatality rate). Using a multiyear average approach does not eliminate 
years with significant increases or decreases. Instead, it provides a 
better understanding of the overall fatality and serious injury data 
over time. The 5-year rolling average also provides a mechanism for 
accounting for regression to the mean. If a particularly high or low 
number of fatalities and/or serious injuries occur in 1 year, a return 
to a level consistent with the average in the previous year may occur. 
Additionally, FHWA requested stakeholder comment on whether a 3-, 4-, 
or 5-year rolling average should be required for the HSIP performance 
measures and also encouraged comment on whether the use of moving 
averages is appropriate to predict future metrics. The AASHTO and 15 
State DOTs, ATSSA, and local agencies including the Association of 
Monterey Bay Area Governments (AMBAG), ARC, DVRPC, MARC, Metropolitan 
Transportation Commission (California), SBCAG, and SRTA explicitly 
expressed support for the adoption of a 5-year rolling average for the 
performance measures. Commenters agreed that a 5-year rolling average 
allows for the smoothing out of statistical anomalies and provides a 
means to evaluate progress from year to year in a more consistent 
fashion than one based on single year peaks and valleys. The AASHTO 
suggested that the 5-year rolling average is consistent with most 
States' current approach to evaluating many of their safety efforts and 
is an effective way to predict future performance over time and help 
account for fluctuations in annual data. Several agencies within 
California including the California State Association of Counties, 
California Highway Patrol, California Walks, and Nevada County, as well 
as the NYSAMPO expressed concern that the 5-year rolling average may be 
too long, recommending that a 3-year rolling average be used instead. 
The NYSAMPO stated that a rolling average is the proper methodology for 
documenting trends in safety performance, because it smooths out the 
propensity for random crash events, but suggested that the 5-year 
period may be too long, since it uses historical data that looks 
backward when the intent of MAP-21 is to measure the outcomes of 
current State and MPO investment choices. Washington State DOT 
expressed a preference for a 7-year rolling average, but agreed that 5 
years is an acceptable mid-point, and indicated that the 5-year rolling 
average is much preferred to a 1-, 3-, or 4-year period, as it better 
controls for regression to the mean and associated randomness of crash 
data. The FHWA maintains that a 5-year rolling average provides the 
appropriate balance between the stability of the data (by averaging 
multiple years) and providing an accurate trend of the data (by 
minimizing how far back in time to consider data). Five years is the 
best compromise for States with a small number of fatalities that may 
see wide fluctuations in the number of fatalities from year to year and 
the desire to minimize the use of historical data. The FHWA adopts a 
definition for ``5-year rolling average'' as proposed in the NPRM. 
Example calculations for all of the performance measures are provided 
in the discussion of Sec.  490.207.
    In the NPRM, FHWA solicited comments on whether the approximate 24-
month time lag before FHWA assesses whether a State met or made 
significant progress toward meeting its targets (time period between 
the end of the calendar year in which the data were collected and the 
date the data are available in the Final FARS and HPMS) is an issue and 
any impacts it may have on a State DOT's ability to establish targets. 
Several commenters expressed concern that this time lag would create 
difficulties in establishing targets and reporting on meeting or making 
significant progress toward meeting targets. The AASHTO and several 
State DOTs recommended that States be allowed to use their own State 
crash databases for the fatality measures, as they would for the 
serious injury measures, since the fatality data would be available 
much earlier in the State databases.
    The FHWA agrees that the data lag proposed in the NPRM is a 
concern. However, FHWA believes it is important to preserve the 
integrity of the national data wherever possible, and therefore does 
not believe it is appropriate to use State-certified fatality data if 
national data exist, due to the variability that could be introduced. 
To address concerns about the data time lag, FHWA revises the final 
rule regarding the use of FARS data and adds a definition for ``Annual 
Report File (ARF),'' modifies the definition for ``Fatality Analysis 
Reporting System (FARS)'' and adds a definition for ``Final FARS.'' The 
added and changed definitions clarify the data contained in each FARS 
file--Final FARS and FARS ARF--and that FARS ARF is available 
approximately 1 year earlier than Final FARS. These changes will allow 
FHWA to make the determination of whether a State has met or made 
significant progress toward meeting its targets approximately 1 year 
earlier than what was proposed in the NPRM. Further discussion 
regarding the use of these terms is provided in Sec.  490.211.
    As discussed above, in this final rule FHWA revises the methodology 
for determining whether a State has met or made significant progress 
toward meeting its performance targets to reflect numerous comments 
suggesting such changes. The FHWA deletes the definitions for ``made 
significant progress,'' ``historical trend line,'' ``prediction 
interval,'' and ``projection point'' proposed in the NPRM, as these are 
no longer used.
    The FHWA adds a non-motorized performance measure to those proposed 
in the NPRM and adds definitions for the terms ``number of non-
motorized fatalities'' and ``number of non-motorized serious injuries'' 
to explicitly define those terms and the associated data sources. 
Consistent with comments received on this issue, FHWA is broad and 
inclusive in defining the non-motorized performance measure. The FHWA 
considers non-motorists,

[[Page 13898]]

consistent with 23 U.S.C. 217(j), to be those transportation system 
users who are not in or on traditional motor vehicles on public 
roadways. The FHWA intends to include in the non-motorized performance 
measure people using many non-motorized forms of transportation 
including: Persons traveling by foot, children in strollers, 
skateboarders, persons in wheelchairs (both non-motorized and 
motorized), persons riding bicycles or pedalcycles, etc.
    The FHWA recognizes that FARS uses slightly different coding 
conventions to input person types in its database from that used in 
State motor vehicle crash databases. Therefore, FHWA includes different 
non-motorist person-types in its definitions and coding conventions for 
the number of non-motorized fatalities and the definition of number of 
non-motorized serious injuries. For non-motorist fatalities, FHWA 
defines the fatally injured non-motorist person, i.e. the ``person 
type,'' defined in FARS,\25\ to include the person level attribute 
codes for (5) Pedestrians, (6) Bicyclists, (7) Other Cyclists, and (8) 
Persons on Personal Conveyances. For non-motorist serious injuries, 
FHWA defines the seriously injured person type as the codes and 
definitions for a (2.2.36) pedestrian or (2.2.39) pedalcyclist in the 
American National Standard (ANSI) D16.1-2007 Manual on Classification 
of Motor Vehicle Traffic Accidents.\26\ The FHWA recognizes that not 
all State crash databases use the ANSI D16.1 standard. Therefore, FHWA 
includes in the number of non-motorized serious injuries definition 
that States may use definitions that are equivalent to those in ANSI. 
Pedestrian and pedalcyclist person types, or an equivalent, are 
universally used in State motor vehicle crash databases and are 
consistent with the FARS person types included in the definition of 
non-motorized fatalities. For those State motor vehicle crash databases 
where the person type definitions do not conform to the ANSI D16.1 
standard, FHWA will provide guidance on which person types should be 
included in the non-motorized performance measure data report to FHWA. 
The FHWA revises the definition for ``number of serious injuries'' to 
specifically require compliance with the 4th Edition of MMUCC, rather 
than the latest edition, as proposed in the NPRM. The AASHTO and the 
Alaska, Arkansas, Delaware, Iowa, and Maine DOTs expressed concern with 
MMUCC compliance if there are changes to the definition in subsequent 
editions of MMUCC. Additional information regarding the change to 
specifically require the 4th Edition of MMUCC is contained in the 
discussion of Sec.  490.207.
---------------------------------------------------------------------------

    \25\ FARS/NAS GES Coding and Validation Manual https://www-nrd.nhtsa.dot.gov/CATS/listpublications.aspx?Id=J&ShowBy=DocType.
    \26\ ANSI D 16 (2007): https://www-nrd.nhtsa.dot.gov/Pubs/07D16.pdf.
---------------------------------------------------------------------------

    The FHWA also clarifies the definition for ``number of serious 
injuries'' to specify that the crash must involve a motor vehicle 
traveling on a public road, which is consistent with FARS and State 
motor vehicle crash databases as discussed previously. Specifically, 
FARS only includes fatalities where a motor vehicle is involved in the 
crash. State crash databases may contain serious injury crashes that 
did not involve a motor vehicle. In order to make the data consistent 
for the performance measures in this rule, States will only report 
serious injury crashes that involved a motor vehicle. This 
clarification is particularly important when considering the non-
motorized performance measure. Non-motorized fatalities and non-
motorized serious injuries will only be considered in the performance 
measure if the crash involves a non-motorist and a motor vehicle. As 
AASHTO and the Michigan DOT noted in comments submitted after the close 
of the comment period, fatal and serious injury crashes involving only 
non-motorists (e.g., a bicyclist crashing into a pedestrian) are not 
included in FARS or many State motor vehicle crash databases. There is 
not a single national or State-by-State data source that includes these 
types of non-motorized fatal or serious injury crashes.
    Finally, FHWA revises the definition of ``serious injury'' to 
reflect that agencies may use injuries classified as ``A'' on the KABCO 
scale through use of the conversion tables developed by NHTSA for the 
first 36 months after the effective date of this rule, and that after 
36 months from the effective date of this rule agencies shall use, 
``suspected serious injury'' (A) as defined in the MMUCC, 4th Edition. 
The AASHTO and Alaska, California, Georgia, Florida, Missouri, Oregon, 
Pennsylvania, and Washington State DOTs commented that the 18-month 
time frame to adopt MMUCC proposed in the NPRM was too aggressive and 
feared that they or other State DOTs would not be able to comply with 
the requirement. The Oregon and Washington State DOTs commented that 
while they could meet the 18-month timeframe, other States may have a 
hard time meeting it. The AASHTO and the States that generally agree 
with AASHTO's comments on this issue suggested that 36 months to adopt 
MMUCC would give States that have not planned or are early in the 
process of converting to MMUCC more time to make the change without 
placing an undue burden on States already facing limited resources. The 
FHWA adopts these revisions to extend the timeframe States have to 
comply with the definition in MMUCC, 4th Edition. Together, these 
requirements will provide for greater consistency in the reporting of 
serious injuries, allow for better communication of serious injury data 
at the national level and help provide FHWA the ability to better 
communicate a national safety performance story.
    The FHWA retains definitions for ``KABCO,'' ``number of 
fatalities,'' ``rate of fatalities,'' and ``rate of serious injuries'' 
as proposed in the NPRM. There were no substantive comments regarding 
these definitions as proposed, therefore FHWA adopts these definitions 
in the final rule. Finally, FHWA adds a definition for ``public road'' 
to clarify that this rule uses the same definition as is used in the 
HSIP regulation at 23 CFR part 924.
Section 490.207 National Performance Management Measures for the 
Highway Safety Improvement Program
    In Sec.  490.207(a), FHWA describes the performance measures 
required under 23 U.S.C. 150 for the purpose of carrying out the HSIP. 
Upon consideration of docket comments and FHWA's belief that it is 
important to hold States accountable to improve non-motorized safety, 
FHWA revises the final rule to include a performance measure to assess 
the number of combined non-motorized fatalities and non-motorized 
serious injuries in a State. New paragraph (a)(5), number of non-
motorized fatalities and non-motorized serious injuries, is in addition 
to the four measures proposed in the NPRM: (1) Number of fatalities; 
(2) rate of fatalities; (3) number of serious injuries; and (4) rate of 
serious injuries.
    In Sec.  490.207(b), FHWA adopts a methodology for calculating each 
performance measure based on a 5-year rolling average. The AASHTO as 
well as Maine, Michigan, and Pennsylvania DOTs suggested that more 
clarity was needed and suggested the potential to revise the 
calculation of 5-year rolling average to better define how it is 
calculated and the years to be included in the calculation. The FHWA 
clarifies that the 5-year rolling average covers the 5-year period that 
ends in the year for which targets are established. For

[[Page 13899]]

example, the measures for target year 2018 would cover the years 2014, 
2015, 2016, 2017, and 2018. Further, FHWA reviewed the performance 
measure calculations and recognized potential ambiguity in identifying 
changes from one 5-year rolling average to another. To rectify that 
ambiguity, for those performance measures calculated using annual data 
expressed as integers (i.e., number of fatalities or serious injuries), 
FHWA adopts a calculation of a 5-year rolling average that rounds to 
the tenths place; similarly, for those performance measures calculated 
using annual data that was initially rounded to the hundredths place 
(i.e., fatality rate per 100 million VMT), FHWA adopts a calculation of 
a 5-year rolling average that rounds to the thousandths place. Applying 
an additional place value to the numbers that are being used to produce 
a 5-year rolling average more accurately reveals the change from one 5-
year rolling average to another that might be obscured if the 5-year 
rolling averages were rounded to the same place value, and alleviates 
some of the confusion about the methodology pointed out in the 
comments.
    The following items describe the calculation for each of the five 
performance measures. In paragraph (b)(1), FHWA states that the 
performance measure for the number of fatalities is the 5-year rolling 
average of the total number of fatalities for each State and is 
calculated by adding the number of fatalities for the most recent 5 
consecutive calendar years ending in the year for which the targets are 
established. The FARS ARF is used if Final FARS is not available. The 
sum of the fatalities is divided by five and then rounded to the tenth 
decimal place. The following example illustrates this calculation:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                Year                                       2014             2015             2016             2017             2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Fatalities...............................................             694              739              593              533            * 514
--------------------------------------------------------------------------------------------------------------------------------------------------------
* From FARS ARF, if Final FARS is not available.

    1. Add the number of fatalities for the most recent 5 consecutive 
calendar years ending in the year for which the targets are 
established:

694 + 739 + 593 + 533 + 514 = 3073

    2. Divide by five and round to the nearest tenth decimal place:

3073/5 = 614.6

The additional place value (the tenths place) in Step 2 reveals change 
from one 5-year rolling average to another that might be obscured if 
the 5-year rolling averages were rounded to the same place value. As 
proposed in the NPRM, FHWA adopts the data reported by the FARS 
database for each calendar year (FARS ARF if Final FARS is not 
available) as the number of fatalities for each State.

    In paragraph (b)(2), FHWA adopts the calculation for the rate of 
fatalities performance measure as the 5-year rolling average of the 
State's fatality rate per VMT as first calculating the fatality rate 
per 100 million VMT, rounded to the hundredths decimal place, for each 
of the most recent 5 consecutive years ending in the year for which the 
targets are established. The FARS ARF is used if Final FARS is not 
available. The FHWA also clarifies the different data sources for the 
VMT used to calculate the rate measures. State VMT data are derived 
from the HPMS. The MPO VMT is estimated by the MPO. The FHWA added the 
provision for MPO VMT estimates since the NPRM did not identify an 
appropriate source for MPO VMT, as it does not exist in the HPMS. For 
more information on MPO VMT, see the discussion of Sec.  490.213. The 
sum of the fatality rates is divided by five and rounded to the 
thousandth decimal place. The AASHTO asked for clarification whether 
the same years of data must be used to calculate a rate for any one 
calendar year. The FHWA clarifies that rates are calculated using the 
same year of data (e.g. CY 2017 rates are calculated using CY 2017 FARS 
data and CY 2017 VMT data). The following example illustrates this 
calculation:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                Year                                       2014             2015             2016             2017             2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fatality Rate per 100 million VMT..................................            0.91             0.89             0.88             0.86           * 0.98
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Based on FARS ARF, if Final FARS is not available.

    1. Add the fatality rate, rounded to the hundredths decimal place, 
for the most recent 5 consecutive calendar years ending in the year for 
which the targets are established:

0.91 + 0.89 + 0.88 + 0.86 + 0.98 = 4.52

    2. Divide by 5 and round to the nearest thousandths decimal place:

4.52/5 = 0.904

The additional place value (the thousandths place) in Step 2 reveals 
change from one 5-year rolling average to another that might be 
obscured if the 5-year rolling averages were rounded to the same place 
value.

    In the NPRM, FHWA proposed that the VMT reported in the HPMS be 
used for the fatality and the serious injury rate measures. The New 
York Metropolitan Transportation Council (NYMTC), ARC, AMBAG, NYSAMPO, 
San Diego Association of Governments (SANDAG), and the Southern 
California Association of Governments (SCAG) commented that there are 
gaps in the quality and availability of safety, roadway, and volume 
data on roads off of the State system, including local and tribal 
roads. The FHWA acknowledges there are some data gaps, so includes 
provisions in this and the HSIP rule (23 CFR part 924) to address those 
gaps.
    First, regarding safety data, FARS is a nationwide census providing 
NHTSA, Congress, and the American public yearly data regarding fatal 
injuries suffered in motor vehicle traffic crashes.\27\ The NHTSA 
administers FARS and works with States, as well as State and tribal 
governments, to improve crash reporting on all public roads including: 
A grant program under 23 U.S.C. 405(c), which supports State efforts to 
improve crash data systems; the Traffic Records Assessments programs 
which support peer evaluations and recommendations to improve State 
traffic records system capabilities; and the Crash Data Improvement 
Program, which examines the quality of each State's crash data and 
provides States with specific recommendations to improve the quality, 
management and use of the data to support safety decisions.
---------------------------------------------------------------------------

    \27\ https://www.nhtsa.gov/FARS.
---------------------------------------------------------------------------

    Second, regarding roadway data, the HSIP rule requires States to 
collect and use a subset of Model Inventory of

[[Page 13900]]

Roadway Elements (MIRE) for all public roadways, including local roads. 
These data elements will improve States' and MPO's ability to estimate 
expected number of crashes at roadway locations.
    Third, regarding volume data, FHWA acknowledges that while the HPMS 
derives VMT for all public roads within the entire State boundary, it 
cannot provide VMT estimates for all public roads within a metropolitan 
planning area because it may not contain volume data on enough local 
roads within these areas. In the final rule, FHWA identifies the HPMS 
as the data source for the State VMT and the MPO VMT estimate as the 
source for MPO VMT. The FHWA added the provision for MPO VMT estimates 
since the NPRM did not identify an appropriate source for MPO VMT, as 
it does not exist in the HPMS. For more information on MPO VMT, see the 
discussion of Sec.  490.213.
    In paragraph (b)(3), FHWA adopts a calculation for the number of 
serious injuries performance measure as the 5-year rolling average of 
the total number of serious injuries for each State, to be calculated 
by adding the number of serious injuries for the most recent 5 
consecutive calendar years ending in the year for which the targets are 
established. The sum of the serious injuries is divided by five and 
then rounded to the tenth decimal place.
    In paragraph (b)(4), FHWA adopts the calculation for the rate of 
serious injuries performance measure as the 5-year rolling average of 
the State's serious injuries rate per VMT as first calculating the rate 
of serious injuries per 100 million VMT, rounded to the hundredths 
decimal place, for each of the most recent 5 consecutive years ending 
in the year for which the targets are established. The sum of the 
serious injury rates is divided by five and rounded to the thousandths 
decimal place. The FHWA also clarifies the different data sources for 
the VMT used to calculate the rate measures. State VMT data is derived 
from the HPMS. The MPO VMT is estimated by the MPO. The FHWA will 
provide technical guidance to support local computation of VMT-based 
safety performance targets.
    The FHWA adds a new paragraph (b)(5) in the final rule to describe 
the calculation for the non-motorized fatalities and non-motorized 
serious injury performance measure as the 5-year rolling average of the 
total number of non-motorized fatalities and the total number of non-
motorized serious injuries for each State. It is calculated by adding 
the number of non-motorized fatalities to the number of non-motorized 
serious injuries for each year for the most recent 5 consecutive years 
ending in the year for which the targets are established (FARS ARF is 
used if Final FARS is not available), dividing by five and rounding to 
the tenths decimal place.
    As proposed in the NPRM, in Sec.  490.207(c), FHWA requires that by 
the effective date of this rule, serious injuries shall be coded (A) on 
the KABCO injury classification scale through the use of the NHTSA 
serious injuries conversion tables. These serious injury conversion 
tables were available in the docket for review. Virginia DOT commented 
that their serious injury definition has changed over the time period 
of the conversion tables. The NHTSA State Data Systems team has 
reviewed the comment and notes that some changes were made over the 
years in Virginia State crash data, but these changes will not affect 
the serious injury crash counts that the State would report in 
compliance with this rule. Therefore, no change is needed to the 
conversion table.
    In response to requests for comment on whether some other injury 
classification and coding system would be more appropriate, Kentucky, 
Missouri, and Washington State DOTs and the NYSAMPO supported the use 
of KABCO. Two professors from the University of Michigan commented that 
usage of the KABCO scale is known to vary from State to State and even 
locality to locality. As stated in the NPRM, FHWA recognizes that there 
is some variability in the injury assessments as well as the 
implementation of the KABCO reporting system across and within States. 
The FHWA believes that the KABCO injury classification scale, through 
the use of the NHTSA serious injury conversion tables, is the best 
option for documenting uniform serious injury coding for all motor 
vehicle crashes across all States until all States report serious 
injuries in accordance with MMUCC, 4th Edition. After MMUCC is fully 
instituted in all States, these variabilities will be resolved and the 
conversion tables will no longer be required. The ATSSA, Oregon, and 
Washington State DOTs suggested that some States do not currently 
include the KABCO scale in their crash reporting, so the type ``A'' 
crash type from that scale would not be available in those States. The 
FHWA addresses this concern by requiring States that are not using 
KABCO to use the NHTSA serious injury conversion tables to convert 
crash reporting to type ``A'' on the KABCO scale.
    The National Association of State Emergency Medical Service 
Officials indicated that it does not believe that even the most well-
intended law enforcement officers can be expected to accurately make 
medical diagnoses at the scene of a crash and that research has 
confirmed that use of KABCO for this purpose is very unreliable and 
inaccurate. As a result, it suggested that FHWA move away from KABCO 
and accelerate the date for expecting States to determine serious 
injury by linking medical records. While FHWA understands that it is 
difficult for law enforcement officers to make medical diagnoses at 
crash scenes and that there may be some variability in the diagnoses as 
well as the implementation of the KABCO reporting system across and 
within States, FHWA believes that the KABCO injury classification 
scale, through the use of the NHTSA serious injury conversion tables, 
is an appropriate step toward providing greater consistency in defining 
serious injuries. The FHWA does not believe there is a way to implement 
a national medical records linkage system in time for the 
implementation of this rule.
    In the NPRM, FHWA also proposed that within 18 months of the 
effective date of this rule, serious injuries were to have been 
determined using the latest edition of MMUCC. The FHWA received 
comments from AASHTO and eight State DOTs (see discussion above in 
Sec.  490.205) regarding the 18-month timeframe suggesting that such a 
timeframe would be difficult to meet. The AASHTO indicated that if a 
State is not currently using this definition, it will require a lengthy 
and resource-intensive process to work with law enforcement to change 
reporting processes, update manuals and training materials, and then 
train every law enforcement agency that reports crashes within each 
State. The AASHTO, and 7 of the 8 State DOTs, recommended that States 
need 36 months to complete this process, while Alaska DOT recommended 
48 months. Washington State DOT and Oregon DOT agreed that 18 months is 
sufficient time for most agencies.
    The FHWA understands that some States will need more than 18 months 
to come into compliance with MMUCC. The FHWA revises the timeframe for 
coming into compliance to 36 months based on the estimate provided by 
AASHTO and the majority of States that commented on this provision. 
Further, FHWA recognizes State DOT concerns that specifying ``the 
latest edition of MMUCC'' in the regulation could cause States to be in 
noncompliance as soon as a new edition of MMUCC is adopted. Therefore, 
as recommended by AASHTO and State DOTs that

[[Page 13901]]

supported AASHTO comments, FHWA specifies the 4th Edition of MMUCC in 
this final rule. Should subsequent editions of MMUCC change the serious 
injury definition, FHWA would consider whether changes are required to 
this regulation.
    The Texas DOT commented that whatever definition is used may not 
correspond with its pre-2009 crash data. As described in the NPRM, FHWA 
also recognizes that as serious injury data are migrated to the MMUCC 
definition, variances may occur in the data collected and reported by 
States. For example, a State may not be currently coding an injury 
attribute that is included in the MMUCC and this could cause an over-
counting or under-counting that would not occur once MMUCC is adopted. 
States should make necessary adjustments in establishing their targets 
to accommodate these potential changes.
    In the NPRM, FHWA recommended, but did not require, in Sec.  
490.207(d) that States prepare themselves, no later than calendar year 
2020, for serious injury data to be collected through and reported by a 
hospital records injury outcome reporting system that links injury 
outcomes from hospital inpatient and emergency discharge databases to 
crash reports. In the NPRM, FHWA gave the NHTSA Crash Outcome Data 
Evaluation System (CODES) as an example of a crash outcome data linkage 
system. The National Transportation Safety Board (NTSB) and the 
Northeast Ohio Areawide Coordinating Agency supported this approach. 
The AASHTO suggested that the use of a system like CODES that links 
collision and medical records to identify serious crash injury data has 
both benefits and drawbacks. The AASHTO indicated that the benefits 
will likely be better data, but the drawback is likely a longer delay 
in reporting (up to 3 years) and possibly a loss of some data due to 
records not matching or Health Insurance Privacy and Portability Act 
limitations. Both AASHTO and NTSB stated that there is no dedicated 
funding for CODES or a similar system. As a result, AASHTO suggested 
that the CODES program needs serious work before being rolled out and 
becoming part of the core requirement. Massachusetts DOT expressed 
concern that in smaller geographic States, where it is fairly common to 
cross State lines between place of incident and place of treatment, it 
would be extremely difficult to reconcile the two datasets. Minnesota 
DOT suggested that the current lag between medical data and crash 
reporting is unacceptable for analysis and for developing 
countermeasures and as a result, the 2020 timeframe described in the 
NPRM is not feasible or appropriate. Florida, Louisiana, Maine, 
Michigan, Missouri, New York, Oklahoma, Texas, and Utah DOTs expressed 
similar concerns with the problematic nature of medical linkage systems 
due to lack of funding and associated expenses, privacy laws, and time 
lag and suggested that FHWA withhold recommending or requiring an 
implementation date for such linkage systems until such issues could be 
resolved.
    Due to the unresolved issues associated with medical linkage 
systems and the docket comments suggesting that an implementation 
timeframe be omitted from the regulation, FHWA removes the 
recommendation from the rule. The FHWA believes that medical linkage 
systems are important and encourages States to embrace a framework to 
perform comprehensive linkage of records related to motor vehicle 
crashes resulting in serious injuries by collecting and analyzing data 
in a manner that will not preclude the use of such systems in their 
State in the future. As mentioned in the NPRM, DOT is an active liaison 
to the National Cooperative Highway Research Program Project 17-57 
Development of a Comprehensive Approach for Serious Traffic Crash 
Injury Measurement and Reporting Systems.\28\ The DOT is awaiting 
completion of this project. The recommendations could then be 
effectively implemented in all States. This final rule does not 
prohibit a State from using a data linkage system like CODES, but 
requires States to use the MMUCC definition of ``suspected serious 
injury'' and the KABCO system, through use of the NHTSA conversion 
tables, for reporting serious injuries data for purposes of this rule.
---------------------------------------------------------------------------

    \28\ https://apps.trb.org/cmsfeed/TRBNetProjectDisplay.asp?ProjectID=3179.
---------------------------------------------------------------------------

Section 490.209 Establishment of Performance Targets
    As proposed in the NPRM, FHWA adopts Sec.  490.209(a), which 
requires State DOTs to establish quantifiable targets for each 
performance measure identified in Sec.  490.207(a). In paragraph 
(a)(1), FHWA adopts, as proposed in the NPRM, that State DOT targets 
shall be identical to the targets established by the SHSO for common 
performance measures reported in the State's HSP, as required under 23 
U.S.C. 402 and NHTSA's regulations at 23 CFR part 1200. The three 
common performance measures are: (1) fatality number; (2) fatality 
rate; and (3) serious injury number.
    The California Department of Transportation (Caltrans), Texas, and 
New York DOTs submitted comments in support of this requirement. Rhode 
Island and Washington State DOTs supported consistent measures and 
efforts to coordinate them. However, AASHTO opposed the requirement for 
identical targets. Thirty-six State DOTs submitted letters indicating 
overall support for AASHTO's comments. Delaware, Florida, Idaho, Maine, 
Missouri, Montana, North Dakota, Oklahoma, South Dakota, and Wyoming 
State DOTs submitted individual letters opposing this requirement.
    The AASHTO stated that the regulation should more clearly vest 
target establishment authority in States. One of AASHTO's concerns with 
establishing identical targets is the resulting effect of the 
requirement under 23 U.S.C. 402(k)(4) that a State's HSP be approved by 
NHTSA. In effect, AASHTO's argument is that requiring identical targets 
in paragraph (a)(1) results in HSIP targets needing NHTSA's approval, 
notwithstanding 23 U.S.C. 150(d)(1), which provides States with target 
establishment authority not subject to FHWA approval. Another one of 
AASHTO's concerns is that it believes there are fundamental differences 
between NHTSA and FHWA's approaches to transportation safety. The 
AASHTO stated that State DOTs should be able to implement innovative 
safety projects and establish aggressive performance targets in their 
HSPs without fear of ``MAP-21 penalties that are imposed'' when States 
do not meet or make significant progress toward meeting these targets. 
The AASHTO stated that State DOTs should have flexibility to establish 
safety targets ``that have performance holding steady, or in some 
situations declining, and are consistent with the [political and 
economic] realities present in their state,'' not subject to DOT 
approval.
    In MAP-21, Congress ordered FHWA to ``promulgate a rulemaking that 
establishes performance measures and standards.'' 23 U.S.C. 150(c)(1). 
While 23 U.S.C. 150(d) provides that States establish performance 
targets, FHWA was given the authority to determine the corresponding 
performance measures. The FHWA understands AASHTO's concerns but, for 
the reasons discussed below, believes that it is consistent with FHWA's 
statutory mandate to require that performance measures in a State's 
HSIP be identical to those in a State's HSP where common.
    While there are fundamental differences between FHWA's and NHTSA's 
approaches to transportation safety, the connection between the HSIP

[[Page 13902]]

and HSP has increased in recent years. In MAP-21, Congress required 
that the performance measures included in an HSP be those developed by 
NHTSA and the Governor's Highway Safety Association (GHSA), as 
described in the report, ``Traffic Safety Performance Measures for 
States and Federal Agencies'' (DOT HS 811 025). 23 U.S.C. 402(k)(4). In 
this report, States are required to establish goals for and report 
progress on 11 core outcome measures, agreed upon by NHTSA and GHSA, 
which include: the number of traffic fatalities, the number of serious 
injuries in traffic crashes, and fatalities per VMT (i.e., fatalities 
per mile of travel). Similarly, in MAP-21, Congress required that 
States' HSIPs include these three performance measures: the number of 
fatalities, the number of serious injuries, and fatalities per vehicle 
mile traveled (i.e., fatalities per VMT). 23 U.S.C. 150(c)(4).
    Not only did Congress require in MAP-21 the three common 
performance measures be included in State HSIPs and HSPs, Congress 
desired that the two programs work together. The MAP-21 amended 23 
U.S.C. 402(b)(1)(F)(v) to require that each State coordinate its HSP, 
data collection, and information systems with the SHSP, as defined in 
23 U.S.C. 148(a). The MAP-21 also amended 23 U.S.C. 148(c)(2)(D)(i) to 
require that as part of a State's HSIP, each State ``advance the 
capabilities of the State for safety data, collection, analysis, and 
integration in a manner that complements the State [HSP] . . .'' 
Moreover, a State's SHSP is to be developed after consultation with a 
highway safety representative of the State's Governor, who is in fact 
the SHSO. 23 U.S.C. 148(a)(11)(i). The new and existing performance 
management linkages connecting the HSIP and HSP to the SHSP promote a 
coordinated relationship for common performance measures, resulting in 
comprehensive transportation and safety planning. The FHWA's 
requirement for identical targets also is consistent with the 
requirement in NHTSA's regulations at 23 CFR part 1200 \29\ to have 
common performance measures that are defined identically. See 23 CFR 
1200.11(b)(2). If the measures are defined identically, any associated 
targets should also be identical. Requiring identical targets, 
therefore, takes advantage of and reinforces the linkages in MAP-21 
between the HSIP and HSP and is consistent with NHTSA's regulations. If 
States focus and apply Federal funds and requirements under both 
programs toward the same safety targets and goals, the opportunity to 
reduce traffic fatalities and serious injuries is maximized.
---------------------------------------------------------------------------

    \29\ In the IFR NHTSA published, titled ``Uniform Procedures for 
State Highway Safety Grant Programs,'' on January 23, 2013. 78 FR 
4986 (Jan. 23, 2013), NHTSA stated that due to the linkages between 
NHTSA-administered programs and other U.S. DOT programs under MAP-
21, ``[t]he Department will harmonize performance measures that are 
common across programs of [U.S. DOT] agencies (e.g., fatalities and 
serious injuries) to ensure that the highway safety community is 
provided uniform measures of progress. . . . NHTSA intends to 
collaborate with other [U.S.] DOT agencies to ensure there are not 
multiple measures and targets for the performance measures common 
across the various Federal safety programs.'' 78 FR 4986-87.
---------------------------------------------------------------------------

    Notably, this approach is consistent with the national safety goals 
Congress established for the Federal-aid highway program and NHTSA's 
mission: To reduce traffic fatalities and serious injuries (in the case 
of FHWA) and to reduce traffic accidents and the resulting deaths, 
injuries, and property damage (in the case of NHTSA) (23 U.S.C. 
150(b)(1) and 23 U.S.C. 402(a)). To further these goals, FHWA strongly 
encourages State DOTs establish targets that represent improved safety 
performance.
    In addition, allowing a State to establish two safety targets for 
common performance measures would be inefficient and could lead to 
public confusion, which is not what Congress intended. See 23 U.S.C. 
150(a). Public transparency is vital to ensure that an effective 
performance management framework exists so that the public can 
encourage and hold accountable State decisionmakers to achieve 
aggressive safety targets. If there are two distinct and possibly 
competing safety targets for common performance measures, the public 
may have difficulty understanding or assessing a State's overall 
performance in those safety areas. Separate targets could also be a 
burden on States by possibly requiring the collecting and reporting of 
two different sets of data for common performance measures in an HSIP 
and an HSP.
    The FHWA believes States retain the authority and flexibility to 
establish safety targets for the common performance measures. The 
FHWA's adoption of Sec.  490.209(a)(1) will not interfere with State 
discretion, because FHWA will not control, supplant, or make it more 
difficult for States to have their targets approved by NHTSA. Through 
collaborative discussions, both FHWA Division Offices and NHTSA 
Regional Offices work closely with each State as the State drafts its 
HSP targets. The FHWA anticipates that this increased coordination 
among the State behavioral and infrastructure safety offices during the 
target establishment process could result in better communication and 
working relationships in the States and could reduce the burden of 
collecting and submitting multiple sets of data.\30\
---------------------------------------------------------------------------

    \30\ Part of NHTSA's HSP evaluation process includes ensuring 
that SHSO-submitted targets are coordinated with the State DOT.
---------------------------------------------------------------------------

    Regardless of the DOT entity receiving the target from the State 
(NHTSA or FHWA), the data used to establish the performance measures 
and targets would be the same. The overlap between the HSP and this 
rule is in a single area--target establishment for three common 
performance measures--as NHTSA's review of a State HSP includes target 
establishment. Under 23 U.S.C. 402(k)(5), disapproval of a State's 
plan, with respect to targets, may occur if ``. . . the performance 
targets contained in the plan are not evidence-based or supported by 
data.'' Under NHTSA's Uniform Procedures for State Highway Safety Grant 
Programs, the State identifies its highway safety problems, describes 
its performance measures, defines its performance targets, and develops 
evidence based countermeasure strategies to address the problems and 
achieve the targets (23 CFR 1200.11(a)(1)). The State provides 
``quantifiable annual performance targets'' and ``justification for 
each performance target that explains why the target is appropriate and 
data driven'' (23 CFR 1200.11(b)(2)). The NHTSA Regional Offices work 
closely with States while the HSPs are being developed, and may request 
additional information from the State to ensure compliance with these 
requirements. While NHTSA must ensure that performance targets under 
the HSP are appropriate and data-driven, it does so only through 
extensive coordination with the State. This collaborative process 
should ameliorate any concerns that States will be deprived of needed 
flexibility in establishing targets.
    The FHWA adopts paragraph (a)(2) as proposed in the NPRM, which 
requires that the performance targets established by the State 
represent the safety performance outcomes anticipated for the calendar 
year following each HSIP annual report. As discussed in the NPRM, FHWA 
recognizes that the State DOT would use the most current data available 
to it when establishing targets required by this rule; that there are 
differences in the FARS ARF, Final FARS, and HPMS data bases and the 
State's most current data; and that there is a time lag between the 
availability of FARS and HPMS data and the date by which the State 
needs to establish performance targets. For the serious

[[Page 13903]]

injuries number measure, this lag is not an issue because the serious 
injury measures and reported outcomes are based on data contained in 
the State's motor vehicle crash database. The NPRM solicited comments 
specific to the time lag for the fatality measures, any impacts the 
time lag may have on a State DOT's ability to establish its targets, 
and any suggestions that could help address the time lag. The AASHTO 
expressed support for the use of the FARS database but noted concern 
with the timely availability of FARS data. Caltrans, Connecticut, 
Florida, Missouri, Oregon, and Rhode Island DOTs, as well as the DVRPC, 
New York Metropolitan Transportation Council (NYMTC), Santa Cruz County 
Regional Transportation Commission, SRTA, Southeast Michigan Council of 
Governments (SEMCOG), and the Tri[hyphen]State Transportation Campaign 
(New York, New Jersey, Connecticut) also raised this concern. Many of 
these agencies indicated that without an improvement in the time lag it 
would be difficult for States and MPOs to develop reasonable targets. 
The AASHTO and several States who supported AASHTO suggested that to 
reduce the time lag, States should be allowed to self-certify their 
fatality and serious injury data. The FHWA believes that it is 
important to preserve the integrity of the national data wherever 
possible. Therefore, FHWA does not believe it is appropriate to allow 
States to use State-certified fatality data, because such an approach 
would introduce variability.
    The SEMCOG and Pennsylvania DOT also expressed concern that a 3-
year time lag between a given fiscal year and when the FARS and HPMS 
data are available for assessment of performance from that fiscal year, 
might result in the State being penalized in the future for something 
that may have already been corrected, even with the 5-year rolling 
average. They also suggested that the time lag may be such that 
projects may already have been implemented that correct the safety 
issue before the evaluation of significant progress. Finally, there is 
a perception by some State and local agencies, such as Caltrans and 
NYSAMPO, that because the data being assessed reflect past performance, 
the regulation does not meet the intent of MAP-21. Of the comments 
submitted, only Washington State DOT indicated that the lag time 
between establishing a target and reporting would not specifically be a 
problem.
    The FHWA agrees that the time lag is an issue and has added the use 
of FARS ARF if Final FARS is not available to significantly reduce the 
time lag to assess whether States have met or made significant progress 
toward meeting their targets. Regardless, any performance management 
program relies on an evaluation step that must ``look back'' after 
programs and policies are applied and an outcome has occurred. Given 
the cyclical nature of a performance management framework (establish 
targets, implement policies and programs, document performance), target 
evaluation will always occur during or after the time States establish 
the next target. Each new opportunity to document and evaluate 
performance will allow States, MPOs, and FHWA to understand the impact 
of different policies, programs, and strategies on achieving targets 
and on attaining the national goal. This improved understanding can be 
applied in future performance management cycles. In this rule, FHWA has 
reduced the time lag by 1 year from what was proposed in the NPRM, so 
lessons from past performance can be applied sooner. This change is 
discussed further in Sec.  490.211(a).
    Paragraph (a)(3) requires that State DOTs establish targets that 
represent the anticipated performance outcome for all public roadways 
within the State regardless of ownership or functional classification. 
Rhode Island and Washington State expressed that there may be 
differences between the requirements to report fatalities on ``all 
public roads'' and the data available in FARS. For example, drive 
aisles and circulating roads in parking lots are included in FARS data. 
The FHWA acknowledges that FARS may include a very limited number of 
fatal crashes that do not occur on ``public roads'' as defined in the 
HSIP,\31\ since FARS includes all crashes occurring on ``trafficways,'' 
\32\ which does include drive aisles and circulating roads. The slight 
differences between the two terms could result in FARS including a 
fatal crash that did not occur on a ``public road'' as defined in the 
HSIP. In the definitions section (Sec.  490.205), FHWA modified the 
definition of FARS to account for this difference. The NHTSA believes 
such occurrences are extremely small. However, NHTSA has never 
quantified the number of such occurrences, since information on whether 
the trafficway meets the HSIP definition of ``public road'' is not 
collected in FARS. Nonetheless, since FARS is the recognized standard 
as a nationwide census of fatal injuries suffered in motor vehicle 
traffic crashes and is already used by the States for reporting 
fatalities, FHWA retains FARS as the data source for assessing whether 
a State has met or made significant progress toward meeting its 
fatality and fatality rate performance targets and the non-motorized 
fatality number portion of the non-motorized fatality and non-motorized 
serious injury performance target. States should be aware that FHWA 
will use FARS as the data source for these assessments and factor that 
knowledge, including the potential including of a fatal crash that does 
not occur on a ``public road,'' into their process for establishing 
targets.
---------------------------------------------------------------------------

    \31\ 23 CFR 924.3.
    \32\ 2013 FARS/NASS GES Coding and Validation Manual, December 
2014.
---------------------------------------------------------------------------

    Virginia DOT recommended that the definition of ``public roadways'' 
be further clarified in this rulemaking, FHWA guidance, and in the 
MIRE. Virginia DOT suggested that by requiring performance targets to 
represent performance outcomes for all ``public roadways within the 
State,'' the proposed regulation would seem to require reporting and 
including fatality and serious injury data from and performance of 
Federal lands roadways, which may not be available to all State 
agencies. The FHWA confirms that ``all public roads'' includes Federal 
lands roadways within the State, per 23 CFR part 924. Virginia DOT also 
indicated that it is unclear as to whether the definition of ``public 
road'' includes public alleys and other service type laneways, typical 
in cities, and that inclusion of roadway inventory, traffic volumes and 
crashes for all public alleys would place additional compliance burdens 
on States. The FHWA confirms that the definition of a ``public road'' 
in 23 CFR part 924 includes crashes occurring on these facilities and 
that because States already collect crash data on these facilities, no 
additional burden will be realized in carrying out this requirement. 
The MAP-21 legislation requires that the safety performance targets 
apply to all public roads, since 23 U.S.C. 150(c)(4) requires 
performance measures for the purpose of carrying out the HSIP and the 
purpose of the HSIP is to ``achieve a significant reduction in traffic 
fatalities and serious injuries on all public roads, including non-
State owned public roads and roads on tribal land'' (See 23 U.S.C. 
148(b)(2)). In addition, 23 U.S.C. 150(b)(1) established the national 
safety goal ``to achieve a significant reduction in traffic fatalities 
and serious injuries on all public roads.'' In addition to this final 
rule, FHWA is issuing a final rule for the HSIP (23 CFR part 924) that 
requires all public roads to be included in the HSIP. The types and 
ownership of roads

[[Page 13904]]

included in the term ``public road'' are defined in that rule. To 
clarify that this rule uses the same definition, FHWA adds to this rule 
in Sec.  490.205 the definition of public road as it is defined in 23 
CFR part 924.
    The ARC, AMBAG, and the NYSAMPO suggested that the quality, 
accuracy, and availability of serious injury data for roadways owned 
and maintained by local agencies present several challenges in the 
measurement and target establishment process. As discussed in the NPRM, 
FHWA recognizes that there is a limit to the quality, accuracy, and 
availability of some data, as well as to the direct impact the State 
DOT can have on the safety outcomes on all public roadways. State DOTs 
and MPOs need to consider this uncertainty in the establishment of 
their targets.
    As proposed in the NPRM, paragraph (a)(4) requires that targets 
established by the State DOTs begin to be reported in the first HSIP 
annual report that is due after 1 year from the effective date of this 
final rule and in each subsequent HSIP annual report thereafter. The 
AASHTO and the Arizona, Missouri, and Tennessee DOTs, as well as 
NYSAMPO were in general agreement with the reporting requirements. The 
FHWA adopts this language in the final rule.
    The FHWA revises paragraph (a)(5) from the proposal in the NPRM to 
require that for the purpose of evaluating the serious injury and non-
motorized serious injury targets States are to report at a minimum the 
most recent 5 years of serious injury and non-motorized serious injury 
data, as compared to the 10 years proposed in the NPRM, in their annual 
HSIP report (See 23 CFR part 924). The FHWA reduces the number of years 
of data required to reflect comments from State DOTs, such as Texas 
DOT, which reported that the State does not archive data back as far as 
the 10 years proposed in the NPRM, as well as a comment from ATSSA that 
many States have not archived their data for the last 10 years and that 
a 5-year archive is common for many States. In addition, 5 years of 
data will be sufficient for FHWA to assess whether States met or made 
significant progress toward meeting targets using the new methodology 
in that portion of the regulation. As part of this change, FHWA removes 
proposed paragraph (a)(5)(i) regarding the years required for the 10 
years of data. However, FHWA encourages States to report as many years 
of additional crash data as they find appropriate for carrying out the 
HSIP. The FHWA adds the requirement for non-motorized serious injuries 
to correspond to the added performance target for non-motorized 
fatalities and serious injuries. The FHWA includes in paragraph (a)(5) 
(paragraph (a)(5)(ii) in the NPRM) the requirement that serious injury 
data be either MMUCC compliant or converted to KABCO system (A) to 
provide consistency throughout the regulation.
    In response to comments from AASHTO, FHWA revises paragraph (a)(6) 
to clarify that, unless approved by FHWA, a State DOT shall not change 
one or more of its targets for a given year once it has submitted its 
target in the HSIP annual report. The AASHTO indicated that the 
regulation needs to clearly state that a State does not need FHWA 
approval to change its target in a subsequent year and that the 
restriction precluding a State from modifying its HSIP targets ``unless 
approved by FHWA'' once the target is submitted in the State's HSIP 
annual report applies only for a given year. The FHWA agrees with 
AASHTO that an important part of a performance management approach is 
to periodically evaluate targets and adjust them to reflect risks, 
revenue expectations, and strategic priorities. Since this rule 
requires States to establish safety performance targets each year, FHWA 
does not believe any changes are necessary to the regulation to allow 
States to change targets in subsequent years. If a State submits a 
target for CY 2017 in its 2016 HSIP report, it cannot change that CY 
2017 target without approval from FHWA and from NHTSA for the common 
performance measures in the HSP because these targets are identical. 
The State will establish a new target for CY 2018 in its 2017 HSIP 
report.
    The FHWA revises Sec.  490.209(b) to clarify that in addition to 
targets described in Sec.  490.209(a) (statewide targets), State DOTs 
may establish additional targets for portions of the State to give the 
State flexibility when establishing targets and to aid the State in 
accounting for differences in urbanized and non-urbanized areas 
consistent with 23 U.S.C. 150(d)(2). Nevada County, CA suggested that 
while additional measures may be appropriate, depending on the unique 
circumstance in a jurisdiction, all areas should be required to monitor 
the same four basic measures. It was FHWA's intention in the NPRM to 
require State DOTs to establish targets for each of the performance 
measures proposed, yet allow States to choose to also establish 
different performance targets for urbanized and non-urbanized areas. 
The revised language in this final rule is meant to clarify that 
intent. The FHWA believes that this approach appropriately implements 
23 U.S.C. 150(d)(2), providing that States may choose to establish 
different performance targets for urbanized and non-urbanized areas. 
The MARC and the Rails-to-Trails Conservancy supported the concept of 
separating urbanized and non-urbanized areas for the purpose of 
performance measures, whereas the Tennessee DOT did not believe it is 
appropriate to create separate performance measures. Texas DOT 
requested clarification on how population growth would be accommodated. 
The SEMCOG requested clarification about how a change in the functional 
classification could affect the performance measure outcomes. As 
discussed in the NPRM, the U.S. Census Bureau defines urbanized area 
boundaries based on population after each decennial census. After the 
U.S. Census Bureau designates urbanized area boundaries, each State may 
adjust those Census-defined urbanized areas. While FHWA requests that 
States complete the process to adjust urbanized area boundaries within 
2 years after the Census-defined boundaries are published, urbanized 
area boundaries could change on varying schedules. Designation of new 
urbanized areas or changes to the boundary of existing urbanized areas 
may lead to changes in the functional classification of the roads 
within those areas. Therefore, changes to the urbanized area boundaries 
affect the scope of the urbanized and non-urbanized targets.
    Each performance measure in this rule is based on calendar year 
data. Section 490.209(b)(1) requires States, if they choose to 
establish additional targets, to identify the urbanized areas and non-
urbanized area boundaries for each calendar year used for these 
targets. States must declare and describe these boundaries in the State 
HSIP annual report required by 23 CFR part 924. States should consider 
the risk for urbanized area boundary changes when establishing any 
urbanized area or non-urbanized areas target.
    For example, the U.S. Census Bureau is expected to release new 
urbanized area boundaries in 2022, as a result of the 2020 census. A 
State may opt to establish an urbanized area fatality number target for 
the 5-year rolling average ending in 2023 in its HSIP report due August 
2022. The State must establish its 2023 target using the number of 
fatalities in the urbanized area as that urbanized area was defined for 
each year in the 5-year rolling average. So, in the 5-year rolling 
average ending in CY 2023, the urbanized area

[[Page 13905]]

boundary for years 2019, 2020, and 2021 is the one based on, or 
adjusted from, the 2010 census. For years 2022 and 2023, the urbanized 
area boundary is the one based on, or adjusted from, the 2020 census. 
The FHWA intends to issue additional guidance regarding the voluntary 
establishment of performance targets for urbanized and non-urbanized 
areas.
    The FHWA adds four paragraphs to the final rule to provide States 
that decide to establish these targets with more specific information 
regarding requirements for these additional targets. Generally, a State 
DOT could establish additional targets for any number and combination 
of urbanized areas and could establish a target for the non-urbanized 
area for any or all of the measures described in paragraph (a). 
Paragraph (b)(1) requires States to declare and describe the boundaries 
used to establish each additional target in the State HSIP annual 
report (23 CFR part 924).
    Paragraph (b)(2) indicates that States may select any number and 
combination of urbanized area boundaries and may also select a single 
non-urbanized area boundary for the establishment of additional 
targets. This provision is different from that proposed in the NPRM, 
which allowed only one aggregated urbanized area target for all 
urbanized areas in the State. The NPRM limited States to one urbanized 
target for all urbanized areas in the State so that a State could not 
establish an unmanageable number of urbanized area targets, nor could 
it use success in meeting those targets to overall make significant 
progress even if the State did not meet its statewide safety targets. 
Smart Growth America and Transportation for America suggested that the 
additional, optional targets for portions of the State to account for 
urbanized and non-urbanized areas be treated differently from the 
statewide targets. Similarly, AASHTO, Iowa, Maine, Missouri, New York, 
Vermont, and Washington State DOTs preferred that only the statewide 
targets be included in the significant progress assessment.
    The FHWA agrees and is not including assessment of the optional 
targets in determining whether the State met or made significant 
progress toward meeting its targets, as was proposed in the NPRM. 
Removing the optional targets from the significant progress assessment 
results in greater nationwide consistency in both the process of 
conducting the assessment and the transparency of the results. Because 
the optional targets are now not included in assessing whether the 
State met or made significant progress toward meeting its targets, FHWA 
is able to provide States the flexibility to establish separate targets 
for each urbanized area, as States determine appropriate. The FHWA also 
believes that this approach may encourage States to establish these 
additional targets. For States that want to establish a non-urbanized 
target, they are still restricted to a single non-urbanized target 
because there is no national standard for sub-dividing non-urbanized 
areas in a State. Establishing these additional targets could provide 
for additional transparency and accountability in a State's performance 
management program, and they could aid the State in accounting for 
differences in performance in urbanized areas and the non-urbanized 
area.
    In paragraph (b)(3), FHWA requires that boundaries used by the 
State DOT for additional targets be contained within the geographic 
boundary of the State. Finally, in paragraph (b)(4), FHWA requires that 
State DOTs separately evaluate the progress of each additional target 
and report progress for each in the State HSIP annual report (23 CFR 
part 924). This provision would meet the requirements of 23 U.S.C. 
150(e)(3).
    As proposed in the NPRM, FHWA establishes in Sec.  490.209(c) that 
MPOs shall establish their performance targets for each of the measures 
established in Sec.  490.207(a), where applicable, in a manner that is 
consistent with elements defined in paragraphs (c)(1) through (5). 
Paragraph (c)(1) requires that MPOs establish their targets not later 
than 180 days after the State submits its annual HSIP report in which 
the State's annual targets are established and reported. Washington 
State DOT, the AMPO, and the Puget Sound MPO supported the 180-day 
timeframe for MPOs to establish targets either through supporting the 
State target or by establishing targets unique to a metropolitan area. 
Caltrans did not support the 180-day timeframe because their experience 
shows that MPOs and Tribal governments will need resources, data 
expertise, and substantial coordination to establish targets, which 
cannot be accomplished within 180 days. The SCAG indicated that it is 
reasonable to require States to report annual targets, because State 
DOTs are already responsible for issuing the HSIP on an annual basis, 
yet most MPOs do not administer safety improvement plans on an annual 
basis, nor do they receive funding to do so. The statute (23 U.S.C. 
134(h)(2)(C)) requires MPOs to establish targets not later than 180 
days of State DOTs establishing their targets. Therefore, FHWA retains 
that requirement in this final rule.
    In the NPRM, FHWA requested stakeholder comment on alternative 
approaches to the required coordination with the long range 
metropolitan and statewide and nonmetropolitan transportation planning 
processes. The SCAG recommended that the MPO reporting requirements be 
aligned with the respective metropolitan transportation planning cycle 
of each MPO, which SCAG stated is consistent with the ``Statewide and 
Nonmetropolitan Transportation Planning; Metropolitan Transportation 
Planning'' NPRM released by FHWA and FTA on June 2, 2014 (FHWA-2013-
0037).\33\ That NPRM for 23 CFR part 450 proposed that MPOs reflect 
performance targets required by MAP-21 in their metropolitan 
transportation plans. The NYSAMPO also suggested that establishing 
targets annually does not fit in with the time horizon of long range 
plans and that the time frame for target reporting in this rule is far 
more frequent than currently required on anything similar. They also 
questioned why MPOs should establish their targets if they are not held 
accountable and indicated this requirement may force the MPOs to choose 
to support the State target each year (due to time and resource 
limitations) and align project and program funds to State supported 
initiatives at the expense of the regional/local context at each MPO. 
The MARC expressed similar concern that annual target establishment 
would be overly burdensome and inconsistent with long-range planning. 
Washington State DOT commented that there should be an emphasis on MPO 
participation in development of the SHSP.
---------------------------------------------------------------------------

    \33\ The Statewide and Nonmetropolitan Transportation Planning; 
Metropolitan Transportation Planning NPRM: https://www.regulations.gov/#!documentDetail;D=FHWA-2013-0037-0001.
---------------------------------------------------------------------------

    The FHWA emphasizes that targets established under this final rule 
should be considered as interim condition/performance levels that lead 
toward the accomplishment of longer-term performance expectations in 
the State DOT's and MPO's long-range transportation plan. Furthermore, 
under 23 U.S.C. 148(a)(11)(A)(ii), States are required to consult with 
MPOs in the development of the State SHSP, and both should recognize 
that the annual targets should logically support, as interim levels of 
performance, the safety goals in that plan. Finally, 23 U.S.C. 
134(h)(2)(D) and 135(d)(2)(C) require States and MPOs to integrate into 
the transportation planning process the goals, objectives, performance 
measures

[[Page 13906]]

and targets described in other State transportation plans and processes 
required as part of a performance based program. In addition, the 
Planning NPRM proposed to require States to consider the performance 
measures and its performance targets when developing its planning 
documents and making investment priorities. State DOTs and MPOs will be 
expected to use the information and data generated as a result of this 
new regulation to better inform their transportation planning and 
programming decisionmaking. In particular, FHWA expects that these new 
performance requirements will help State DOTs and MPOs make better 
decisions on how to use their resources in ways that will result in the 
greatest possible reduction in fatalities and serious injuries, as well 
as to achieve their other performance targets. The FHWA acknowledges 
that we received several comments related to the planning process. For 
additional information on how the new performance management 
requirements fit into the statewide and metropolitan planning process, 
please review the Planning NPRM.\34\
---------------------------------------------------------------------------

    \34\ The Statewide and Nonmetropolitan Transportation Planning; 
Metropolitan Transportation Planning NPRM: https://www.regulations.gov/#!documentDetail;D=FHWA-2013-0037-0001.
---------------------------------------------------------------------------

    The FHWA adds paragraph (c)(2) to clarify that the MPO targets are 
established annually for the same calendar year period that the State 
targets are established. In paragraph (c)(3), FHWA clarifies the 
language in this final rule from what was proposed in paragraph (c)(2) 
in the NPRM to indicate that after the MPOs within the State establish 
the targets, FHWA expects that upon request, the State DOT can provide 
the MPOs targets to FHWA.
    The AMPO and individual MPOs, including ARC, Hampton Roads 
Transportation Planning Organization, Puget Sound and Tennessee MPOs, 
as well as Iowa, Michigan, Tennessee, and Vermont State DOTs submitted 
comments regarding paragraph (c)(4) (paragraph (c)(3) in the NPRM). The 
AMPO expressed concern that the expectation of this requirement, as 
written in the NPRM, was that MPOs would program the very limited, 
regionally allocated, Surface Transportation Program (STP) \35\ funds 
toward additional specific projects in support of the State's targets. 
The AMPO suggested that MPOs be allowed to establish a numerical target 
for individual performance measures and support the State target on 
remaining targets. Recognizing the often limited STP funds allocated to 
MPOs and the desire of some MPOs to have flexibility to establish their 
own targets, FHWA modifies paragraph (c)(4) to indicate that MPO 
targets shall be addressed by either (i) agreeing to plan and program 
projects so that they contribute toward the accomplishment of the State 
DOT safety targets or (ii) committing to quantifiable targets for the 
metropolitan planning area. To provide MPOs with flexibility and to be 
respectful of the potential burden of establishing individual targets, 
FHWA allows MPOs to support all the State targets, establish specific 
numeric targets for all of the performance measures, or establish 
specific numeric targets for one or more individual performance 
measures and support the State target on other performance measures.
---------------------------------------------------------------------------

    \35\ Section 1109 of the FAST Act (Pub. L. 114-94) converts the 
Surface Transportation Program found at 23 U.S.C. 133 into the 
Surface Transportation Block Grant Program.
---------------------------------------------------------------------------

    Caltrans and Washington State DOTs indicated that some MPOs do not 
have the capability or the finances to collect volume data; therefore 
it is difficult for them to have appropriate data for all public roads. 
To address this comment, in this final rule, FHWA adds paragraph (c)(5) 
that requires MPOs that establish targets for rates (fatality rate or 
serious injury rate) to report the VMT estimate used for such targets 
and the methodology used to develop the estimate. The methodology 
should be consistent with that used to satisfy other Federal reporting 
requirements, if applicable. In the NPRM, FHWA proposed that MPO VMT be 
derived from the HPMS. However, the HPMS does not provide sufficient 
information to derive complete VMT in an MPO planning area, since local 
roadway travel is only reported to HPMS in aggregate for the State and 
for Census urbanized areas. Therefore, consistent with the overall 
goals of performance management identified in 23 U.S.C. 150(a) to 
increase transparency and accountability, FHWA requires MPOs that 
establish rate targets to report the methodology used to estimate the 
MPO VMT. Many MPOs collect VMT data within their planning area and 
estimate VMT for the transportation planning process or for 
transportation conformity required under the Clean Air Act. The MPO VMT 
estimate used for rate targets for this rule should be consistent with 
these or other Federal reporting requirements, if applicable. 
Consistency with other Federal reporting requirements and existing MPO 
efforts will minimize the burden on MPOs that choose to establish rate 
targets and increase the transparency of the MPO target establishment 
process. The FHWA will provide technical assistance to those MPOs that 
estimate their VMT and will review MPO VMT estimates as part of the MPO 
target achievement review process established in 23 CFR part 450.
    As proposed in the NPRM, FHWA adopts paragraph (c)(6) that requires 
MPO targets established under paragraph (c)(4) to represent all public 
roadways within the metropolitan planning area boundary regardless of 
ownership or functional classification. Washington State DOT requested 
additional clarification in the language to clarify that the intention 
is not to have different targets based on functional class. The 
Washington State DOT further explained that most MPOs are interested in 
having the targets applied to all public roads within the MPO boundary 
regardless of functional class and that it does not support different 
targets for different functional classes of roadways. The FHWA agrees. 
An MPO is not expected to establish separate targets for each 
functional classification. It is required to support the State's target 
or establish its own targets only for the five performance measures for 
which the State is required to establish targets under Sec.  
490.209(a). The MPO targets must include all public roads within the 
planning area, regardless of their functional classification. The FHWA 
retains the language, as proposed, in the final rule.
    In paragraph (d), FHWA requires State DOTs and MPOs to coordinate 
on the establishment of the State targets or the MPO's decision to 
either agree to plan or program projects so that they contribute toward 
meeting the State targets or commit to their own quantifiable targets. 
The Washington State DOT suggested that the NPRM was unclear as to 
whether it would be appropriate for either the State target or the MPO 
target to have different boundaries and noted that the NPRM did not 
require coordination and agreement on target establishment. The FHWA 
believes it is appropriate for the State target and the MPO target to 
have different boundaries, since the metropolitan planning area does 
not necessarily coincide with State lines or urbanized area boundaries.
    As proposed in the NPRM, and consistent with 23 U.S.C. 
134(h)(2)(B)(i)(II) and 23 U.S.C. 135(d)(2)(B)(i)(II), FHWA requires 
coordination between the State DOT and relevant MPOs on target 
establishment in this rule in paragraph (d)(1) to ensure consistency, 
to the maximum extent practicable, but this

[[Page 13907]]

rule does not require the MPO and State to reach a consensus agreement 
on their targets. The FHWA expects that States and MPOs will establish 
a process by which they will meet the coordination requirements in this 
rule. States and MPOs are expected to follow their established 
processes, as part of the on-going coordination that occurs during the 
statewide and metropolitan transportation planning processes. The 
Planning NPRM \36\ proposed requiring coordination, to the maximum 
extent practicable, among MPOs and State DOTs on their target setting 
efforts. The FHWA asked a series of questions in the Planning NPRM 
related to coordination among MPOs and State DOTs relating to target 
setting. As a result, FHWA expects to provide information in the 
preamble to the Planning Final Rule that will further describe how MPOs 
and States DOTs could coordinate on target setting efforts. Further, 
FHWA is conducting research and developing guidance documents and 
training courses to implement the new performance management 
requirements. In these materials, FHWA will emphasize the importance of 
MPO and State DOT coordination during target setting; provide examples 
of noteworthy target setting coordination efforts, and reference tools 
that States and MPOs can use to improve coordination.
---------------------------------------------------------------------------

    \36\ www.regulations.gov (FHWA-2013-0037).
---------------------------------------------------------------------------

    In the NPRM, FHWA specified that ``relevant'' MPOs coordinate with 
the State because that is the requirement in 23 U.S.C. 
135(d)(2)(B)(i)(II). Michigan and Washington State DOTs, Puget Sound 
MPO, NYSAMPO, and AMPO all requested clarification of the word 
``relevant.'' For the measures in this rule, relevant MPOs are any MPO 
where all or any portion of the MPO planning area boundary is within 
the State boundary. The AMPO also expressed concern for potential 
issues with how multi-State MPOs establish targets, coordinate and 
report them. Tennessee DOT also questioned how MPOs should coordinate 
one target for the urbanized area while addressing performance targets 
for two or more State DOTs. The FHWA adds paragraph (d)(2) to address 
situations where metropolitan planning areas extend across multiple 
States. This addition clarifies that MPOs with multi-State boundaries 
that agree to plan or program projects so that they contribute toward 
State targets are to plan and program safety projects in support of the 
State DOT targets for each State that their metropolitan planning area 
covers. For example, MPOs that extend into two States are to contribute 
toward two separate sets of targets--one for each State. Through 
coordination with the State (or States for multi-State MPOs), MPOs that 
elect to establish quantifiable targets for their metropolitan planning 
area should consider each State's target and ensure consistency, to the 
maximum extent practicable, when establishing the MPO targets. An MPO 
with a planning area that crosses into two States may choose to agree 
to plan and program projects so that they contribute toward the State 
target for one State and establish a quantifiable target for the 
planning area in the other State.
Section 490.211 Determining Whether a State Department of 
Transportation Has Met or Made Significant Progress Toward Meeting 
Performance Targets
    The FHWA changes the title and language within this section to 
provide consistency with legislative language regarding determining 
whether a State has met or made significant progress toward meeting its 
targets. Specifically, FHWA revises the terminology to reflect ``met or 
made significant progress toward meeting performance targets'' rather 
than ``achieving'' targets. The FHWA also adds paragraph numbering to 
improve readability of this section.
    As proposed in the NPRM, in paragraph (a), FHWA lists the data 
sources that will be used in the determination whether a State has met 
or made significant progress toward meeting its targets. Based on a 
review of the comments related to data lag and FHWA's own desire to 
decrease the lag, FHWA revises Sec.  490.211(a) to reflect that meeting 
or making significant progress toward meeting targets will be 
determined based on the most recent available Final and FARS ARF data 
for the fatality number, fatality rate, and for the non-motorized 
fatality number. Final FARS will be used for all years for which it is 
available when FHWA makes an assessment of whether a State has met or 
made significant progress toward meeting its targets. If Final FARS is 
not available--usually the last year of the 5-year rolling average for 
the target being assessed--FARS ARF will be used. The FARS ARF is 
published approximately 1 year before the Final FARs report, and as a 
result, using FARS ARF data reduces the data time lag by approximately 
1 year. The FHWA believes that improvements in data systems will also 
enable the HPMS data to be available in this timeframe. As a result, 
FHWA is confident that Final FARS, FARS ARF, and HPMS data can be 
available within 12 months of the end of the calendar year for which 
the targets are being assessed. The FHWA believes this change addresses 
the concern over the time lag for assessing whether a State has met or 
made significant progress toward meeting its targets to the maximum 
extent possible.
    As an example to illustrate the time between establishment of State 
targets and national and State data source availability to assess 
whether the State met or made significant progress toward meeting its 
targets, targets that represent anticipated safety performance measures 
outcomes for CY 2018 would need to be established by the State DOT and 
reported in its HSIP annual report due August 31, 2017. For the 
purposes of establishing targets, States are encouraged to use any and 
all data available, including data that go beyond traditional datasets, 
such as FARS, HPMS, and State crash databases to include current and 
pending legislation, political factors, available resources, etc. The 
FHWA will assess the targets established by the State for CY 2018 when 
the CY 2018 FARS and HPMS data become available in approximately 
December of 2019, 1 year earlier than proposed in the NPRM. The FARS 
ARF will be used for CY 2018 fatality data if Final FARS is not 
available. Final FARS data for CY 2014 to CY 2017 is expected to be 
available, as is CY 2014 to CY 2018 HPMS data. The State serious injury 
number and rate data used to evaluate the CY 2018 targets will be 
reported in the HSIP report due August 31, 2019. The FHWA will assess 
whether States met or made significant progress toward meeting their CY 
2018 targets and report findings to the States by March 31, 2020.
    Paragraphs (a)(3) and (6) are added to indicate that FHWA will use 
the most recent available Final and FARS ARF data for the non-motorized 
fatality number and State reported data for the non-motorized serious 
injuries number, to evaluate the non-motorized performance target that 
FHWA adds in this final rule. To also address the non-motorized 
performance target, FHWA adds in paragraph (b) that non-motorized 
serious injury data will be taken from the HSIP report.
    Paragraph (c) of the final rule (paragraph (b) of the NPRM) 
describes the process by which FHWA will evaluate whether a State DOT 
has met or made significant progress toward meeting performance 
targets. As discussed earlier in the Met or Made Significant Progress 
Toward Meeting Targets Evaluation section, FHWA adopts a revised 
methodology from what was proposed in the NPRM to address a wide 
variety of comments. In paragraph (c)(1), FHWA indicates that optional 
additional targets (urbanized and non-urbanized targets) established

[[Page 13908]]

under Sec.  490.209(b) will not be evaluated for whether the State met 
or made significant progress toward meeting its targets. The FHWA 
believes that excluding these additional targets from the significant 
progress assessment provides an opportunity for some flexibility with 
respect to these targets and may encourage State DOTs to establish 
these additional targets. In paragraph (c)(2) FHWA indicates that a 
State DOT is determined to have met or made significant progress toward 
meeting its targets when at least four of the five performance targets 
are met or the outcome for the performance measure is better than the 
5-year rolling average data for the performance measure for the year 
prior to the establishment of the State's target (i.e., baseline safety 
performance), as described previously in the example for Table 2.
    In paragraph (d) of the final rule (paragraph (c) of the NPRM), 
FHWA adopts the NPRM language with a clarification to specify that if 
it determines that a State has not met or made significant progress 
toward meeting its safety targets, the State would need to comply with 
23 U.S.C. 148(i) for the subsequent fiscal year. Missouri and Rhode 
Island DOTs objected to this ``penalty,'' because their STIP will 
already have been fully committed by the time the significant progress 
evaluation occurs and the State is notified that the provisions of 23 
U.S.C. 148(i) apply. The FHWA recognizes that the STIP is a commitment 
to the public regarding the projects and activities the State will 
implement. The FHWA also considers the targets the State establishes as 
a commitment to the public regarding the performance that will be 
achieved from those projects and activities and expects that State DOTs 
already maximize the efficacy of the STIP to reduce fatalities and 
serious injuries for all road users. The FHWA considers it reasonable 
to expect States to reconsider and make any necessary changes to how 
funds will be spent if the State fails its commitment to meet or make 
significant progress toward meeting its targets. The implementation 
plan and funding obligation requirements would further optimize safety 
projects in the STIP so that the State will meet or make significant 
progress in a following year. The FHWA added language to paragraph (d) 
to clarify that the 23 U.S.C. 148(i) provisions apply for the 
subsequent fiscal year after FHWA determines a State has not met or 
made significant progress toward meeting its targets. States will have 
several months after they are informed that the 23 U.S.C. 148(i) 
provisions will apply to make any necessary adjustments to the STIP to 
accommodate the HSIP funding requirements and to prepare and carry out 
their implementation plan.
    As explained in the NPRM, the performance provisions in 23 U.S.C. 
148(i) require that a State DOT that has not met or made significant 
progress toward meeting safety performance targets must: (1) Use 
obligation authority equal to the HSIP apportionment only for HSIP 
projects for the fiscal year prior to the year for which the safety 
performance targets were not met or significant progress was not made, 
and (2) submit an annual implementation plan that describes actions the 
State DOT will take to meet or make significant progress toward meeting 
its safety performance targets based on a detailed analysis, including 
analysis of crash types. Both of these provisions will facilitate 
transportation safety initiatives and improvements and help focus 
Federal resources in areas where Congress has deemed a national 
priority. In addition, these provisions help serve one of the overall 
goals of performance management--to improve accountability of the 
Federal-aid highway program (23 U.S.C. 150(a)). The implementation plan 
must: (a) Identify roadway features that constitute a hazard to road 
users; (b) identify highway safety improvement projects on the basis of 
crash experience, crash potential, or other data-supported means; (c) 
describe how HSIP funds will be allocated, including projects, 
activities, and strategies to be implemented; (d) describe how the 
proposed projects, activities, and strategies funded under the State 
HSIP will allow the State DOT to make progress toward achieving the 
safety performance targets; and (e) describe the actions the State DOT 
will undertake to meet or make significant progress toward meeting its 
performance targets.
    The AASHTO and the States that supported AASHTO expressed concern 
that 23 U.S.C. 148(i) be implemented consistently and asked for 
clarification on several issues, including whether States subject to 
the 23 U.S.C. 148(i) provisions must obligate the funds in a single 
fiscal year or can program the funds over several years. The 23 U.S.C. 
148(i)(1) states that ``[the State shall] use obligation authority 
equal to the apportionment of the State for the prior year under 
section 104(b)(3) only for highway safety improvement projects. . . .'' 
The FHWA believes that, under this provision, States must obligate such 
HSIP funds during the next fiscal year after the State is notified that 
FHWA determined it did not meet or make significant progress toward 
meeting its targets. This provision reduces flexibility associated with 
a States' HSIP funds \37\ and requires that those funds be focused on 
safety projects. In addition, this interpretation is consistent with 
how FHWA has proposed to implement the requirements related to the 
bridge and pavement minimum condition.\38\ The FHWA will require the 
funds to be obligated in the next fiscal year, rather than the fiscal 
year when the State is notified, to allow the State time to plan and 
program projects so that the required obligation authority can be used 
on HSIP projects. Likewise, when FHWA notifies a State that it has met 
or made significant progress toward meeting its performance targets, 
that determination will be applied to the State's obligation authority 
for the upcoming fiscal year, and the implementation plan will be due 
by the beginning of that fiscal year.
---------------------------------------------------------------------------

    \37\ 23 U.S.C. 148(i)(1) requires States to ``use obligation 
authority equal to the apportionment of the State for the prior year 
under section 104(b)(3) only for highway safety improvement projects 
under this section until the Secretary determines that the State has 
met or made significant progress towards meeting the safety 
performance targets of the State.''
    \38\ NPRM for the National Performance Management Measures; 
Assessing Pavement Condition for the National Highway Performance 
Program and Bridge Condition for the National Highway Performance 
Program 80 FR 326 (proposed January 5, 2015) https://www.gpo.gov/fdsys/pkg/FR-2015-01-05/pdf/2014-30085.pdf.
---------------------------------------------------------------------------

    The AASHTO and Minnesota DOT expressed concern that States may have 
difficulty delivering a full year's apportionment in these 
circumstances. The FHWA appreciates that concern and will work with 
affected States to expedite any necessary changes or project approvals. 
In order to give effect and meaning to 23 U.S.C. 148(i), which holds 
States accountable for making performance targets, FHWA believes it is 
appropriate to require that the obligation authority be used within the 
next fiscal year. As discussed earlier, FHWA believes this approach is 
consistent with the national goal of significantly reducing traffic 
fatalities and serious injuries. It would result in reducing 
flexibility associated with a State's HSIP funds and provide that the 
State focus those funds on safety projects. However, FHWA notes that 
while a State will be required to use obligation authority equal to a 
prior year HSIP apportionment on HSIP projects, the State retains 
flexibility on the remainder of its obligation authority.
    The DVRPC asked for clarification on whether the 23 U.S.C. 148(i) 
provisions only apply to States that are determined

[[Page 13909]]

to not meet or make significant progress toward meeting their targets, 
and if the obligation authority restrictions are only for existing 
safety funds. The Oklahoma DOT asked for clarification on the intent of 
the provisions. As stated above, only States that do not meet or make 
significant progress toward meeting their targets are subject to the 23 
U.S.C. 148(i) provisions in the subsequent fiscal year. In that year, 
such States must use obligation authority equal to the HSIP 
apportionment only for HSIP projects for the fiscal year prior to the 
year targets were established. States retain the authority to decide 
which HSIP projects will be obligated. The implementation plan should 
guide the State's project decisions so that the combined 23 U.S.C. 
148(i) provisions lead to the State meeting or making significant 
progress toward meeting its safety performance targets in subsequent 
years.
    The AASHTO commented that the implementation plan could lead to 
redundant, onerous reporting that adds no value to improving safety. 
The FHWA intends to issue additional guidance to States to meet the 
legislative requirements for the implementation plan while limiting 
redundancy and maximizing the opportunity to improve safety performance 
and States' ability to meet their targets.
    The AASHTO and Missouri DOT also recommended that States be granted 
a waiver if a State can demonstrate that it is using all its obligation 
authority under 23 U.S.C. 104(b)(3), and that obligating additional 
amounts up to the apportioned amount will negatively affect the State's 
ability to meet or make significant progress toward meeting other 
required performance targets. The FHWA believes that both the plain 
language and intent of the statute (as this is one of the provisions 
where States are accountable for their targets) do not authorize FHWA 
to issue such waivers.
    While Missouri DOT commented that the ``penalties'' imposed by the 
23 U.S.C. 148(i) provisions are significant; many others, including the 
LAB and its supporters, the Tri-State Transportation Campaign, Smart 
Growth America and its supporters, and one citizen, commented that the 
provisions are meaningless and offer no real incentive for States to 
take the process seriously. The FHWA expects States and MPOs to be 
sincere in their efforts to implement performance management and to 
contribute to the national safety goal, and FHWA will implement these 
regulations to that end. This rule includes the maximum incentive 
provided for in the statute for States to support the national safety 
goal.
    The following example illustrates how these provisions would be 
carried out. A State DOT establishes targets for performance measures 
for CY 2018 and reports them in its 2017 HSIP annual report due by 
August 31, 2017. The targets established by the State for CY 2018 will 
be evaluated by FHWA when the CY 2018 FARS and HPMS data become 
available in approximately December of 2019, 1 year earlier than 
proposed in the NPRM. The FARS ARF will be used if Final FARS is not 
available. The serious injury data used for determining whether the 
State met or made significant progress toward meeting its serious 
injury targets will be taken from the State's 2019 HSIP report due by 
August 31, 2019. The FHWA will make a determination, inform the State 
DOT if it met or made significant progress toward meeting its CY 2018 
safety performance targets, and send results to the State by March 31, 
2020. If FHWA determines that the State did not meet or make 
significant progress toward meeting its CY 2018 safety performance 
targets, 23 U.S.C. 148(i) will apply for FY 2021. For FY 2021, the 
State would need to use obligation authority equal to the HSIP 
apportionment only for HSIP projects for FY 2017 (the fiscal year prior 
to the year for which the target was established) and submit an annual 
implementation plan that describes actions the State DOT will take to 
meet or make significant progress toward meeting targets based on a 
detailed analysis, including analysis of crash types. The 
implementation plan is due to FHWA before October 1, 2020, the 
beginning of FY 2021. Similarly, by March 31, 2021, FHWA will make a 
determination and inform the State DOT if it met or made significant 
progress toward meeting its CY 2019 safety performance targets. If the 
State has met or made significant progress toward meeting its targets, 
the State will still be required to use its FY 2021 obligation 
authority equal to the HSIP apportionment only for HSIP projects for FY 
2017. For FY 2022, FHWA would not place any restrictions on the State's 
use of obligation authority since the State met or made significant 
progress toward meeting its CY 2019 safety performance targets.
    For any year FHWA determines that a State DOT has met or made 
significant progress toward meeting its safety performance targets, 
that State DOT would not be required to use obligation authority or 
submit an implementation plan for the subsequent year. If, in some 
future year, FHWA determines that a State DOT does not meet or make 
significant progress toward meeting performance targets, the State DOT 
would at that time need to submit an implementation plan as well as use 
obligation authority as described above.
    In paragraph (e) of the final rule (paragraph (d) of the NPRM), 
FHWA indicates that it will first evaluate whether States have met or 
made significant progress toward meeting their targets when the 
performance data are available for the year for which the first targets 
are established--the end of the following calendar year. For example, 
data to evaluate CY 2018 targets will be available at the end of CY 
2019. (FARS ARF will be used if Final FARS is not available.) The FHWA 
will make a determination and inform the State DOT if it met or made 
significant progress toward meeting its CY 2018 safety performance 
targets and send results to the State by March 31, 2020. The FHWA will 
make determinations annually thereafter. The language in the final rule 
is slightly different from what was proposed in the NPRM to provide 
consistency with statutory language regarding determining whether a 
State has met or made significant progress toward meeting its targets 
and because FHWA can make the evaluation earlier by using FARS ARF data 
if Final FARS is not available.
Section 490.213 Reporting of Targets for the Highway Safety Improvement 
Program
    As proposed in the NPRM, FHWA adopts in Sec.  490.213(a) reporting 
requirements, such that the State DOT reports its safety performance 
measures and targets in accordance with 23 CFR 924.15(a)(1)(iii) in the 
HSIP final rule published elsewhere in this issue of the Federal 
Register. The information in the HSIP reports, which are published on 
FHWA's Web site,\39\ will improve the visibility and transparency of 
State fatal and serious injury data. In addition, FHWA is in the 
process of creating a new public Web site to help communicate the 
national performance story. The Web site will likely include 
infographics, tables, charts, and descriptions of the performance data 
that the State DOTs would be reporting to FHWA. The FHWA acknowledges 
that we received several comments related to the HSIP rule. For 
additional information on the new HSIP requirements, please review the 
HSIP

[[Page 13910]]

final rule published elsewhere in this issue of the Federal 
Register.\40\
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    \39\ https://safety.fhwa.dot.gov/hsip/reports/.
    \40\ Highway Safety Improvement Program; Subchapter J--Highway 
Safety Rulemaking: https://www.regulations.gov/#!docketDetail;D=FHWA-
2013-0019.
---------------------------------------------------------------------------

    In the NPRM, FHWA proposed that the manner in which MPOs report 
their established safety targets be documented in the Metropolitan 
Planning Agreement, which is regulated under 23 CFR part 450. The 
AASHTO, Iowa, and New York State DOTs suggested that the language 
regarding targets and Metropolitan Planning Agreements be changed to 
specify that State DOTs and MPOs agree to a reporting methodology, 
working within the intent of the established Metropolitan Planning 
Agreement, without requiring a modification to the Agreement. Those 
agencies did not support explicitly addressing a reporting methodology 
within the planning agreement itself, but suggested instead that each 
State should be able to develop a reporting system for its MPOs within 
the framework of the agreement. The NYSAMPO indicated that the 
mechanics of how targets are to be reported to the State need to be 
worked out with each MPO through its metropolitan planning agreement. 
New York State DOT indicated that because Metropolitan Planning 
Agreements are formal legal documents, modifying such documents would 
require the approval of all signatories, including executive and legal 
review at the State DOT level. The FHWA understands these concerns and 
revises Sec.  490.213(b) to indicate that MPOs shall annually report 
their established safety targets to their respective State DOT, in a 
manner that is documented and mutually agreed upon by both parties. 
While the process needs to be documented, it does not need to be 
incorporated into the Metropolitan Planning Agreement.
    In paragraph (c), as proposed in the NPRM, FHWA requires MPOs to 
report baseline safety performance and progress toward achievement of 
their targets in the system performance report in the metropolitan 
transportation plan, as provided in 23 U.S.C. 134(i)(2)(c). In the 
final rule, FHWA adds a listing of data sources upon which the safety 
performance measures and progress for MPOs are to be based, since the 
MPO VMT data source differs from the State VMT data source. The FHWA 
intends to issue guidance on estimating MPO VMT. The list of data 
sources includes the use of Final and FARS ARF data for fatalities 
(FARS ARF is used if Final FARS is not available), including non-
motorized fatalities, the MPO VMT estimate for rates, and State 
reported data for serious injuries, including non-motorized serious 
injuries.

VI. Rulemaking Analyses and Notices

    The FHWA considered all comments received before the close of 
business on the extended comment closing date indicated above, and the 
comments are available for examination in the docket (FHWA-2013-0020) 
at Regulations.gov. The FHWA also considered comments received after 
the comment closing date to the extent practicable. The FHWA also 
considered the HSIP provisions of the FAST Act in the development of 
this final rule. The FAST Act did not require additional provisions 
beyond those discussed in the NPRM.

Rulemaking Analysis and Notices Executive Order 12866 (Regulatory 
Planning and Review), Executive Order 13563 (Improving Regulation and 
Regulatory Review), and DOT Regulatory Policies and Procedures

    The FHWA has determined that this action is a significant 
regulatory action within the meaning of Executive Order (EO) 12866 and 
within the meaning of DOT regulatory policies and procedures due to the 
significant public interest in regulations related to traffic safety. 
It is anticipated that the economic impact of this rulemaking will not 
be economically significant within the meaning of EO 12866 as discussed 
below. This action complies with EOs 12866 and 13563 to improve 
regulation. This action is considered significant because of widespread 
public interest in the transformation of the Federal-aid highway 
program to be performance-based, although it is not economically 
significant within the meaning of EO 12866. The FHWA is presenting an 
RIA (or regulatory analysis) in support of the final rule on Safety 
Performance Measures for the HSIP. The regulatory analysis evaluates 
the economic impact, in terms of costs and benefits, on Federal, State, 
and local governments, as well as private entities regulated under this 
action, as required by EO 12866 and EO 13563. The estimated costs are 
measured on an incremental basis, relative to current safety 
performance reporting practices.
    This section of the final rule identifies the estimated costs 
resulting from the final rule--and how many serious injuries and 
fatalities would need to be avoided to justify this rule--in order to 
inform policymakers and the public of the relative value of the final 
rule. The complete RIA may be accessed from the rulemaking's docket 
(FHWA-2013-0020). Each of the three performance measure final 
rulemakings will include a discussion on the costs and benefits 
resulting from the requirements contained in each respective 
rulemaking; however, the third performance measure rule will provide a 
comprehensive discussion on the costs and benefits associated with all 
three performance measure rules for informational purposes.
    The cornerstone of MAP-21's highway program transformation is the 
transition to a performance-based program. In accordance with the law, 
State DOTs will invest resources in projects to meet or make 
significant progress toward meeting performance targets that will make 
progress toward national goals. Safety is one goal area where MAP-21 
establishes national performance goals for Federal-aid highway 
programs. The MAP-21 requires FHWA to promulgate a rule to establish 
safety performance measures.
Estimated Costs of the Final Rule
    To estimate costs for the final rule, FHWA assessed the level of 
effort, expressed in labor hours and the labor categories, needed for 
State and local transportation and law enforcement agencies to comply 
with each component of the final rule. Level of effort by labor 
category is monetized with loaded wage rates to estimate total costs.
    Table 3 displays the total cost of the final rule for the 10-year 
study period (2015-2024). Total costs are estimated to be $87.5 million 
undiscounted, $65.6 million discounted at 7 percent, and $76.9 million 
discounted at 3 percent. Costs associated with the establishment of 
performance targets make up 57 percent of the total costs of the final 
rule. This is an increase of 4 percent from the NPRM estimates 
resulting from costs associated with the new non-motorized fatalities 
and non-motorized serious injuries performance measure, added effort 
required for MPOs to estimate MPO-specific VMT for performance targets, 
a decrease in the number of MPOs expected to establish targets, and 
costs associated with coordination between State DOTs and MPOs. The 
costs in the tables assume 201 MPOs would establish their own targets, 
and the remaining portion would adopt State DOT targets. It is assumed 
that State DOTs and MPOs serving Transportation Management Areas (TMA) 
\41\ will use staff to analyze safety trends and establish performance 
targets on an annual basis, and MPOs

[[Page 13911]]

not serving a TMA will adopt State DOT targets rather than establish 
their own safety performance targets and will therefore not incur any 
incremental costs. The FHWA made this assumption because larger MPOs 
may have more resources available to develop performance targets. The 
FHWA believes that this is a conservative estimate, as larger MPOs may 
elect not to establish their own targets for any variety of reasons, 
including resource availability.
---------------------------------------------------------------------------

    \41\ A TMA is an urbanized area having a population of over 
200,000 or otherwise requested by the Governor and the MPO and 
officially designated by FHWA or FTA. 23 U.S.C. 134(k).

                                      Table 3--Total Cost of the Final Rule
----------------------------------------------------------------------------------------------------------------
                                                                                10-year total cost
                         Cost components                         -----------------------------------------------
                                                                   Undiscounted         7%              3%
----------------------------------------------------------------------------------------------------------------
Section 490.205--Definitions....................................     $28,227,162     $23,206,606     $25,907,994
    KABCO Compliance............................................         373,324         373,324         373,324
        Minor Revisions to Database.............................         307,828         307,828         307,828
        Convert Non-KABCO Data..................................          65,495          65,495          65,495
    MMUCC Compliance............................................      27,329,875      22,309,319      25,010,707
        Modifications to Database Platform......................         668,053         545,330         611,363
        Modifications to PAR Report.............................       1,128,776         921,418       1,032,990
        Training for Law Enforcement............................      25,533,045      20,842,571      23,366,353
    Establish 5-Year Rolling Average............................         523,963         523,963         523,963
Section 490.209--Establishment of Performance Targets...........      50,085,525      36,440,371      43,421,875
    Coordination Between State DOTs and MPOs....................         867,367         810,623         842,103
    Establish Performance Targets...............................      49,218,159      35,629,748      42,579,772
Section 490.211--Determining Whether a State DOT has Met or Made       9,170,764       5,947,112       7,577,340
 Significant Progress Toward Meeting Performance Targets........
    Develop an Implementation Plan..............................       9,170,764       5,947,112       7,577,340
                                                                 -----------------------------------------------
        Total Cost of Final Rule................................      87,483,450      65,594,089      76,907,209
----------------------------------------------------------------------------------------------------------------
* Totals may not sum due to rounding.

    The final rule's 10-year undiscounted cost ($87.5 million in 2014 
dollars) increased relative to the proposed rule ($66.7 million in 2012 
dollars). As discussed below, FHWA made a number of changes which 
affected cost.
General Updates
    In the final rule RIA, FHWA updated all costs to 2014 dollars from 
2012 dollars in the proposed rule. In addition, FHWA updated labor 
costs to reflect current BLS data. These general updates increased the 
estimated cost of the final rule relative to the proposed rule.
    The FHWA also updated the estimated total number of MPOs to 409, 
which is less than the 420 MPOs used at the time that the NPRM was 
published. The estimated number of MPOs serving TMAs is now 201, less 
than the estimate of 210 in the NPRM, and the number of non-TMA MPOs is 
208, less than the estimate of 210 in the NPRM. At the time the RIA was 
prepared for the NPRM, FHWA assumed that the 36 new urbanized areas 
resulting from the 2010 census would have MPOs designated for them. In 
reality, some of the newly designated urbanized areas merged with 
existing MPOs, resulting in the designation of fewer new MPOs than 
expected. The FHWA estimates that, on average, only the 201 larger MPOs 
serving TMAs will establish their own quantifiable performance targets 
and that the 208 smaller MPOs serving non-TMAs will choose to agree to 
plan and program projects so that they contribute toward the 
accomplishment of the State DOT safety targets. The reduction in the 
number of MPOs decreased the estimated costs MPOs incur to comply with 
the requirements of this final rule relative to the proposed rule.
Section 490.205 Definitions
    The RIA estimates the cost of Sec.  490.205 resulting from the 
requirements for KABCO compliance, MMUCC, 4th edition compliance, and 
5-year rolling average calculations. The cost associated with these 
rule requirements increased from $26.3 million in the proposed rule to 
$28.2 million in the final rule. In addition to the general updates 
described above, FHWA revised the final rule RIA to reflect updated 
local law enforcement census data, costs associated with the new non-
motorized fatalities and non-motorized serious injuries performance 
measure, the removal of the proposed requirement for State DOTs to 
compile a 10-year historical trend line, and the deferred 
implementation of MMUCC, 4th edition compliance (required by 36 months 
after the effective date of the final rule, rather than the proposed 18 
months).
Section 490.209 Establishment of Performance Targets
    The RIA estimates the cost of coordination between State DOTs and 
MPOs as well as establishing performance targets under Sec.  490.209. 
The cost of this section increased from $35.3 million for the proposed 
rule to $50.1 million for the final rule. In addition to the general 
updates described above, the increase in cost is attributable to the 
additional costs associated with establishing the new non-motorized 
fatalities and non-motorized serious injuries performance measure 
(which added a one-time cost of approximately $180,000, and 
approximately $8 million over the 10 year period of analysis), the 
added effort required for MPOs to estimate MPO-specific VMT for 
performance targets (which is partially offset by a decrease in the 
number of MPOs expected to establish quantifiable targets), and costs 
of coordinating on the establishment of targets in accordance with 23 
CFR part 450.
Section 490.211 Determining Whether a State DOT Has Met or Made 
Significant Progress Toward Meeting Performance Targets
    In the RIA, FHWA estimates the cost associated with failing to meet 
or make significant progress toward meeting targets, as described in 
Sec.  490.211. The cost of this section of the rule increased from $5.1 
million in the proposed rule to $9.2 million in the final rule. In 
addition to the general updates described above, the increase in cost 
results from an increase in the estimated number of States that might 
not meet or make significant progress toward

[[Page 13912]]

meeting their targets using the new methodology included in the final 
rule. Based on the new methodology, FHWA conservatively assumed that 26 
State DOTs will fail to meet or make significant progress toward 
meeting their targets, which is more than double the assumption used in 
the NPRM's RIA (10 State DOTs would fail to meet or make significant 
progress toward meeting their targets). The cost was partially offset 
by a reduction in the number of years the costs accrued.
    In the RIA, FHWA recognizes that States will not incur incremental 
costs for using obligation authority equal to the HSIP apportionment 
only for HSIP projects for the prior year because programming decisions 
are already realized as part of the State's overall management of the 
Federal aid program.
Break-Even Analysis
    Currently, there are many differences in the way State DOTs code 
and define safety performance measures (e.g., serious injuries). The 
rule will result in regulations that will: Improve data by providing 
for greater consistency in the reporting of serious injuries; require 
reporting on serious injuries and fatalities through a more visible and 
transparent reporting system; require the establishment and reporting 
of targets that can be aggregated at the national level; require State 
DOTs to meet or make significant progress toward meeting their targets, 
and establish requirements for State DOTs that have not met or made 
significant progress toward meeting their targets.
    Upon implementation, FHWA expects that the final rule will result 
in certain benefits. Specifically, FHWA expects safety investment 
decisionmaking to be more informed through the use of consistent and 
uniform measures; State DOTs and MPOs will be expected to use the 
information and data generated as a result of the new regulations to 
better inform their transportation planning and programming 
decisionmaking and more directly link investments to desired 
performance outcomes. In particular, FHWA expects that these new 
performance aspects of the Federal-aid program will help State DOTs and 
MPOs make better decisions on how to use resources in ways that will 
result in the greatest possible reduction in fatalities and serious 
injuries. These regulations will also help provide FHWA the ability to 
better communicate a national safety performance story. Each of these 
benefits is discussed in further detail in the RIA, available in the 
docket.
    These benefits resulting from the rule (i.e., more informed 
decisionmaking, greater accountability, and greater focus on making 
progress toward the national goal for safety) will lead to improved 
safety outcomes. However, the benefits from the rule, while real and 
substantial are difficult to monetize. Therefore, FHWA quantified these 
benefits of the rule by performing a break-even analysis, as described 
in OMB Circular A-4, that estimates the number of fatalities and 
incapacitating injuries \42\ the rule will need to prevent for the 
benefits of the rule to justify the costs.
---------------------------------------------------------------------------

    \42\ The FHWA used crash statistics from NHTSA's Traffic Safety 
Facts 2012 to perform the break-even analysis. Because crash types 
are categorized using a KABCO scale in that report (i.e., fatality, 
incapacitating injury, non-incapacitating injury, or other injury), 
the results of the break-even analysis are expressed in terms of 
incapacitating injury, and not serious injury.
---------------------------------------------------------------------------

    Table 4 displays the results from a break-even analysis using 
fatalities and incapacitating injuries as its reduction metric. The 
results show that the rule must prevent approximately 10 fatalities 
over 10 years to generate enough benefits to outweigh the cost of the 
rule. This translates to one fatality per year nationwide.\43\ When the 
break-even analysis uses incapacitating injuries as the reduction 
metric, it shows that the rule must prevent 199 incapacitating injuries 
over 10 years, or approximately 20 a year, for benefits to outweigh the 
cost.\44\ In other words, the rule will need to prevent approximately 
10 fatalities or approximately 199 incapacitating injuries over 10 
years nationwide for the rule to be cost-beneficial. Due to the 
relatively small break-even number of fatalities and incapacitating 
injuries, FHWA believes that the rule will surpass this threshold and 
that the benefits of the rule will outweigh the costs.
---------------------------------------------------------------------------

    \43\ For reference, according to ``NHTSA Traffic Safety Facts 
2012,'' there were 33,561 fatalities in 2012.
    \44\ For reference, according to ``NHTSA Traffic Safety Facts 
2012,'' there were 182,000 incapacitating injuries in 2012.

                               Table 4--Break-Even Analysis Using Fatalities and Incapacitating Injuries Reduction Metric
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                Average annual reduction
                                                   Reduction in fatalities  Average annual reduction        Reduction in            in incapacitating
           Undiscounted 10-year costs              required for rule to be   in fatalities required    incapacitating injuries    injuries required for
                                                       cost-beneficial        for rule to be cost-     required for rule to be      rule to be cost-
                                                                                   beneficial              cost-beneficial             beneficial
a                                                      b = a / $9,200,000          c = b / 10 years          d = a / $439,990          d = c / 10 years
--------------------------------------------------------------------------------------------------------------------------------------------------------
$87,483,450.....................................                      9.5                       1.0                     198.8                      19.9
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Both of the thresholds in the break-even analysis increased in the 
final rule relative to the proposed rule. Specifically, the reduction 
in fatalities required for the rule to be cost-beneficial increased 
from 7 in the NPRM to 10 in the final rule, while the reduction in 
incapacitating injuries required for the rule to be cost-beneficial 
increased from 153 in the NPRM to 199 in the final rule. In both cases, 
the break-even points were affected by the increase in the undiscounted 
10-year cost (which increased from $66.7 million to $87.5 million). In 
addition, the break-even points were affected by increases to both the 
VSL for fatalities and the average cost per incapacitating injury (the 
VSL for fatalities increased from $9.1 million to $9.2 million, while 
the average cost per incapacitating injury increased from $435,000 to 
$440,000).

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), FHWA has evaluated the effects of this final rule on 
small entities and anticipates that this action would not have a 
significant economic impact on a substantial number of small entities. 
The rule affects three types of entities: State governments, MPOs, and 
local law enforcement agencies. State governments do not meet the 
definition of a small entity.
    The MPOs are considered governmental jurisdictions, so the small 
entity standard for these entities is whether the affected MPOs serve 
less than 50,000 people. The MPOs serve urbanized areas with 
populations of more than 50,000. Therefore, MPOs that incur economic 
impacts under this rule

[[Page 13913]]

do not meet the definition of a small entity.
    Local law enforcement agencies, however, may be subsets of small 
governmental jurisdictions. Nonetheless, the RIA estimates minimal one-
time costs to local law enforcement agencies, as discussed above, and 
these costs represent a fraction of a percent of revenues of a small 
government. Therefore, I hereby certify that this regulatory action 
would not have a significant impact on a substantial number of small 
entities.

Unfunded Mandates Reform Act of 1995

    The FHWA has determined that this final rule would not impose 
unfunded mandates as defined by the Unfunded Mandates Reform Act of 
1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). This rule does not 
contain a Federal mandate that may result in expenditures by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of greater than $151 million or more in any 1 year (2 U.S.C. 
1532). Additionally, the definition of ``Federal mandate'' in the 
Unfunded Mandates Reform Act excludes financial assistance of the type 
in which State, local, or tribal governments have authority to adjust 
their participation in the program in accordance with changes made in 
the program by the Federal Government. The Federal-aid highway program 
permits this type of flexibility.

Executive Order 13132 (Federalism)

    The FHWA has analyzed this final rule in accordance with the 
principles and criteria contained in Executive Order 13132 dated August 
4, 1999. The FHWA has determined that this action would not have 
sufficient federalism implications to warrant the preparation of a 
federalism assessment. The FHWA has also determined that this 
rulemaking would not preempt any State law or State regulation or 
affect the States' ability to discharge traditional State governmental 
functions.

Executive Order 12372 (Intergovernmental Review) Catalog of Federal 
Domestic Assistance Program Number 20.205, Highway Planning and 
Construction

    The regulations implementing EO 12372 regarding intergovernmental 
consultation on Federal programs and activities apply to this program. 
This EO applies because State and local governments would be directly 
affected by the proposed regulation, which is a condition on Federal 
highway funding. Local entities should refer to the Catalog of Federal 
Domestic Assistance Program Number 20.205, Highway Planning and 
Construction, for further information.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from OMB prior to 
conducing or sponsoring a collection of information. Details and 
burdens in this final rule would be realized in Planning and HSIP 
reporting. The PRA activities are already covered by existing OMB 
Clearances. The reference numbers for those clearances are OMB: 2132-
0529 (Planning) and 2125-0025 (HSIP), both with expiration date of May 
31, 2017. Any increases in PRA burdens caused by MAP-21 in these areas 
were addressed in PRA approval requests associated with those 
rulemakings.

National Environmental Policy Act

    The FHWA has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.), 
and has determined that this action would not have any effect on the 
quality of the environment and meets the criteria for the categorical 
exclusion at 23 CFR 771.117(c)(20).

Executive Order 12630 (Taking of Private Property)

    The FHWA has analyzed this rule under EO 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights. The FHWA does not anticipate that this action would affect a 
taking of private property or otherwise have taking implications under 
EO 12630.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of EO 12988, Civil Justice Reform, to minimize litigation, eliminate 
ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    The FHWA has analyzed this rule under EO 13045, Protection of 
Children from Environmental Health Risks and Safety Risks. The FHWA 
certifies that this action would not cause an environmental risk to 
health or safety that might disproportionately affect children.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this action under EO 13175, dated November 6, 
2000, and believes that the action would not have substantial direct 
effects on one or more Indian tribes; would not impose substantial 
direct compliance costs on Indian tribal governments; and would not 
preempt tribal laws. The final rule addresses obligations of Federal 
funds to States for Federal-aid highway projects and would not impose 
any direct compliance requirements on Indian tribal governments. 
Therefore, a tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

    The FHWA has analyzed this action under EO 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The FHWA has determined that this is not a 
significant energy action under that order and is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Therefore, a Statement of Energy Effects is not required.

Executive Order 12898 (Environmental Justice)

    The EO 12898 requires that each Federal agency make achieving 
environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minorities and low-income populations. The FHWA has 
determined that this rule does not raise any environmental justice 
issues.

Regulation Identifier Number

    A RIN is assigned to each regulatory action listed in the Unified 
Agenda of Federal Regulations. The Regulatory Information Service 
Center publishes the Unified Agenda in April and October of each year. 
The RIN contained in the heading of this document can be used to cross-
reference this action with the Unified Agenda.

List of Subjects in 23 CFR Part 490

    Bridges, Highway safety, Highways and roads, Incorporation by 
reference, Reporting and recordkeeping requirements.

    Issued on March 2, 2016 under authority delegated in 49 CFR 
1.85.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.

0
In consideration of the foregoing, FHWA amends title 23, Code of 
Federal Regulations, by adding part 490 to read as follows:

[[Page 13914]]

PART 490--NATIONAL PERFORMANCE MANAGEMENT MEASURES

Subpart A--General Information
Sec.
490.101 Definitions.
490.103 [Reserved]
490.105 [Reserved]
490.107 [Reserved]
490.109 [Reserved]
490.111 Incorporation by reference.
Subpart B--National Performance Management Measures for the Highway 
Safety Improvement Program
490.201 Purpose.
490.203 Applicability.
490.205 Definitions.
490.207 National performance management measures for the Highway 
Safety Improvement Program.
490.209 Establishment of performance targets.
490.211 Determining whether a State department of transportation has 
met or made significant progress toward meeting performance targets.
490.213 Reporting of targets for the Highway Safety Improvement 
Program.


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

Subpart A--General Information


Sec.  490.101  Definitions.

    Unless otherwise specified, the following definitions apply to this 
part:
    Highway Performance Monitoring System (HPMS) is a national level 
highway information system that includes data on the extent, condition, 
performance, use, and operating characteristics of the Nation's 
highways.
    Measure means an expression based on a metric that is used to 
establish targets and to assess progress toward meeting the established 
targets (e.g., a measure for flight on-time performance is percent of 
flights that arrive on time, and a corresponding metric is an 
arithmetic difference between scheduled and actual arrival time for 
each flight).
    Metric means a quantifiable indicator of performance or condition.
    Non-urbanized area means a single geographic area that comprises 
all of the areas in the State that are not ``urbanized areas'' under 23 
U.S.C. 101(a)(34).
    Target means a quantifiable level of performance or condition, 
expressed as a value for the measure, to be achieved within a time 
period required by the Federal Highway Administration (FHWA).


Sec.  490.103  [Reserved]


Sec.  490.105  [Reserved]


Sec.  490.107  [Reserved]


Sec.  490.109  [Reserved]


Sec.  490.111  Incorporation by reference.

    (a) Certain material is incorporated by reference into this part 
with the approval of the Director of the Federal Register under 5 
U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that 
specified in this section, FHWA must publish a notice of change in the 
Federal Register and the material must be available to the public. All 
approved material is available for inspection at the Federal Highway 
Administration, Office of Highway Policy Information (202-366-4631) and 
is available from the sources listed below. It is also available for 
inspection at the National Archives and Records Administration (NARA). 
For information on the availability of this material at NARA, call 202-
741-6030 or go to https://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (b) [Reserved]
    (c) [Reserved]
    (d) American National Standards Institute, Inc., 1899 L Street NW., 
11th Floor, Washington, DC 20036, (202) 293-8020, www.ansi.org.
    (1) ANSI D16.1-2007, Manual on Classification of Motor Vehicle 
Traffic Accidents. 7th Edition, approved August 2, 2007 (also available 
from National Safety Council, 1121 Spring Lake Drive, Itasca, Illinois 
60143-3201, (https://www-nrd.nhtsa.dot.gov/Pubs/07D16.pdf) IBR approved 
for Sec.  490.205.
    (2) [Reserved]
    (e) The U.S. Department of Transportation, 1200 New Jersey Avenue 
SE., Washington, DC 20590, www.dot.gov.
    (1) DOT HS 811 631, Model Minimum Uniform Crash Criteria (MMUCC) 
Guideline, 4th Edition, July 2012 (also available at https://mmucc.us/sites/default/files/MMUCC_4th_Ed.pdf) IBR approved for Sec. Sec.  
490.205 and 490.207(c).
    (2) [Reserved]

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


Sec.  490.201  Purpose.

    The purpose of this subpart is to implement the requirements of 23 
U.S.C. 150(c)(4), which requires the Secretary of Transportation to 
establish performance measures for the purpose of carrying out the 
Highway Safety Improvement Program (HSIP) and for State departments of 
transportation (State DOTs) to use in assessing:
    (a) Serious injuries and fatalities per vehicle miles traveled 
(VMT); and
    (b) Number of serious injuries and fatalities.


Sec.  490.203  Applicability.

    The performance measures are applicable to all public roads covered 
by the HSIP carried out under 23 U.S.C. 130 and 148.


Sec.  490.205  Definitions.

    Unless otherwise specified, the following definitions apply in this 
subpart:
    5-year rolling average means the average of 5 individual, 
consecutive annual points of data (e.g., the 5-year rolling average of 
the annual fatality rate).
    Annual Report File (ARF) means FARS data that are published 
annually, but prior to Final FARS data.
    Fatality Analysis Reporting System (FARS) means a nationwide census 
providing public yearly data regarding fatal injuries suffered in motor 
vehicle traffic crashes.
    Final FARS means the FARS data that replace the ARF file and 
contain additional cases or updates to cases that became available 
after the ARF was released, and which are no longer subject to future 
changes.
    KABCO means the coding convention system for injury classification 
established by the National Safety Council.
    Number of fatalities means the total number of persons suffering 
fatal injuries in a motor vehicle traffic crash during a calendar year, 
based on the data reported by the FARS database.
    Number of non-motorized fatalities means the total number of 
fatalities (as defined in this section) with the FARS person attribute 
codes: (5) Pedestrian, (6) Bicyclist, (7) Other Cyclist, and (8) Person 
on Personal Conveyance.
    Number of non-motorized serious injuries means the total number of 
serious injuries (as defined in this section) where the injured person 
is, or is equivalent to, a pedestrian (2.2.36) or a pedalcylcist 
(2.2.39) as defined in the ANSI D16.1-2007 (incorporated by reference, 
see Sec.  490.111).
    Number of serious injuries means the total number of persons 
suffering at least one serious injury for each separate motor vehicle 
traffic crash during a calendar year, as reported by the State, where 
the crash involves a motor vehicle traveling on a public road, and the 
injury status is ``suspected serious injury (A)'' as described in 
MMUCC, (incorporated by reference, see

[[Page 13915]]

Sec.  490.111). For serious injury classifications that are not MMUCC 
compliant, the number of serious injuries means serious injuries that 
are converted to KABCO by use of conversion tables developed by the 
NHTSA.
    Public road is as defined in 23 CFR 924.3.
    Rate of fatalities means the ratio of the total number of 
fatalities (as defined in this section) to the number of vehicle miles 
traveled (VMT) (expressed in 100 million VMT) in a calendar year.
    Rate of serious injuries means the ratio of the total number of 
serious injuries (as defined in this section) to the number of VMT 
(expressed in 100 million vehicle miles of travel) in a calendar year.
    Serious injuries means:
    (1) From April 14, 2016 to April 15, 2019, injuries classified as 
``A'' on the KABCO scale through use of the conversion tables developed 
by NHTSA; and
    (2) After April 15, 2019, ``suspected serious injury (A)'' as 
defined in the MMUCC.


Sec.  490.207  National performance management measures for the Highway 
Safety Improvement Program.

    (a) There are five performance measures for the purpose of carrying 
out the HSIP. They are:
    (1) Number of fatalities;
    (2) Rate of fatalities;
    (3) Number of serious injuries;
    (4) Rate of serious injuries; and,
    (5) Number of non-motorized fatalities and non-motorized serious 
injuries.
    (b) Each performance measure is based on a 5-year rolling average. 
The performance measures are calculated as follows:
    (1) The performance measure for the number of fatalities is the 5-
year rolling average of the total number of fatalities for each State 
and shall be calculated by adding the number of fatalities for each of 
the most recent 5 consecutive years ending in the year for which the 
targets are established, dividing by 5, and rounding to the tenth 
decimal place. FARS ARF may be used if Final FARS is not available.
    (2) The performance measure for the rate of fatalities is the 5-
year rolling average of the State's fatality rate per VMT and shall be 
calculated by first calculating the number of fatalities per 100 
million VMT for each of the most recent 5 consecutive years ending in 
the year for which the targets are established, adding the results, 
dividing by 5, and rounding to the thousandth decimal place. The FARS 
ARF may be used if Final FARS is not available. State VMT data are 
derived from the HPMS. The Metropolitan Planning Organizations (MPO) 
VMT is estimated by the MPO. The sum of the fatality rates is divided 
by five and then rounded to the thousandth decimal place.
    (3) The performance measure for the number of serious injuries is 
the 5-year rolling average of the total number of serious injuries for 
each State and shall be calculated by adding the number of serious 
injuries for each of the most recent 5 consecutive years ending in the 
year for which the targets are established, dividing by five, and 
rounding to the tenth decimal place.
    (4) The performance measure for the rate of serious injuries is the 
5-year rolling average of the State's serious injuries rate per VMT and 
shall be calculated by first calculating the number of serious injuries 
per 100 million VMT for each of the most recent 5 consecutive years 
ending in the year for which the targets are established, adding the 
results, dividing by five, and rounding to the thousandth decimal 
place. State VMT data are derived from the HPMS. The MPO VMT is 
estimated by the MPO.
    (5) The performance measure for the number of Non-motorized 
Fatalities and Non-motorized Serious Injuries is the 5-year rolling 
average of the total number of non-motorized fatalities and non-
motorized serious injuries for each State and shall be calculated by 
adding the number of non-motorized fatalities to the number non-
motorized serious injuries for each of the most recent 5 consecutive 
years ending in the year for which the targets are established, 
dividing by five, and rounding to the tenth decimal place. FARS ARF may 
be used if Final FARS is not available.
    (c) For purposes of calculating serious injuries in paragraphs 
(b)(3), (4), and (5) of this section:
    (1) Before April 15, 2019, serious injuries may be determined by 
either of the following:
    (i) Serious injuries coded (A) in the KABCO injury classification 
scale through use of the NHTSA serious injuries conversion tables; or
    (ii) Using MMUCC (incorporated by reference, see Sec.  490.111).
    (2) By April 15, 2019, serious injuries shall be determined using 
MMUCC.


Sec.  490.209  Establishment of performance targets.

    (a) State DOTs shall establish targets annually for each 
performance measure identified in Sec.  490.207(a) in a manner that is 
consistent with the following:
    (1) State DOT targets shall be identical to the targets established 
by the State Highway Safety Office for common performance measures 
reported in the State's Highway Safety Plan, subject to the 
requirements of 23 U.S.C. 402(k)(4), and as coordinated through the 
State Strategic Highway Safety Plan.
    (2) State DOT targets shall represent performance outcomes 
anticipated for the calendar year following the HSIP annual report 
date, as provided in 23 CFR 924.15.
    (3) State DOT performance targets shall represent the anticipated 
performance outcome for all public roadways within the State regardless 
of ownership or functional class.
    (4) State DOT targets shall be reported in the HSIP annual report 
that is due after April 14, 2017, and in each subsequent HSIP annual 
report thereafter.
    (5) The State DOT shall include, in the HSIP Report (see 23 CFR 
part 924), at a minimum, the most recent 5 years of serious injury data 
and non-motorized serious injury data. The serious injury data shall be 
either MMUCC compliant or converted to the KABCO system (A) for injury 
classification through use of the NHTSA conversion tables as required 
by Sec.  490.207(c).
    (6) Unless approved by FHWA and subject to Sec.  490.209(a)(1), a 
State DOT shall not change one or more of its targets for a given year 
once it is submitted in the HSIP annual report.
    (b) In addition to targets described in paragraph (a) of this 
section, State DOTs may, as appropriate, for each target in paragraph 
(a) establish additional targets for portions of the State.
    (1) A State DOT shall declare and describe in the State HSIP annual 
report required by Sec.  490.213 the boundaries used to establish each 
additional target.
    (2) State DOTs may select any number and combination of urbanized 
area boundaries and may also select a single non-urbanized area 
boundary for the establishment of additional targets.
    (3) The boundaries used by the State DOT for additional targets 
shall be contained within the geographic boundary of the State.
    (4) State DOTs shall evaluate separately the progress of each 
additional target and report that progress in the State HSIP annual 
report (see 23 CFR part 924).
    (c) The Metropolitan Planning Organizations (MPO) shall establish 
performance targets for each of the measures identified in Sec.  
490.207(a), where applicable, in a manner that is consistent with the 
following:
    (1) The MPOs shall establish targets not later than 180 days after 
the respective State DOT establishes and

[[Page 13916]]

reports targets in the State HSIP annual report.
    (2) The MPO target shall represent performance outcomes anticipated 
for the same calendar year as the State target.
    (3) After the MPOs within each State establish the targets, the 
State DOT must be able to provide those targets to FHWA, upon request.
    (4) For each performance measure, the MPOs shall establish a target 
by either:
    (i) Agreeing to plan and program projects so that they contribute 
toward the accomplishment of the State DOT safety target for that 
performance measure; or
    (ii) Committing to a quantifiable target for that performance 
measure for their metropolitan planning area.
    (5) The MPOs that establish quantifiable fatality rate or serious 
injury rate targets shall report the VMT estimate used for such targets 
and the methodology used to develop the estimate. The methodology 
should be consistent with other Federal reporting requirements, if 
applicable.
    (6) The MPO targets established under paragraph (c)(4) of this 
section specific to the metropolitan planning area shall represent the 
anticipated performance outcome for all public roadways within the 
metropolitan planning boundary regardless of ownership or functional 
class.
    (d)(1) The State DOT and relevant MPOs shall coordinate on the 
establishment of targets in accordance with 23 CFR part 450 to ensure 
consistency, to the maximum extent practicable.
    (2) The MPOs with multi-State boundaries that agree to plan and 
program projects to contribute toward State targets in accordance with 
paragraph (c)(4)(i) of this section shall plan and program safety 
projects in support of the State DOT targets for each area within each 
State (e.g., MPOs that extend into two States shall agree to plan and 
program projects to contribute toward two separate sets of targets (one 
set for each State)).


Sec.  490.211  Determining whether a State department of transportation 
has met or made significant progress toward meeting performance 
targets.

    (a) The determination for having met or made significant progress 
toward meeting the performance targets under 23 U.S.C. 148(i) will be 
determined based on:
    (1) The most recent available Final FARS data for the fatality 
number. The FARS ARF may be used if Final FARS is not available;
    (2) The most recent available Final FARS and HPMS data for the 
fatality rate. The FARS ARF may be used if Final FARS is not available;
    (3) The most recent available Final FARS data for the non-motorized 
fatality number. The FARS ARF may be used if Final FARS is not 
available;
    (4) State reported data for the serious injuries number;
    (5) State reported data and HPMS data for the serious injuries 
rate; and
    (6) State reported data for the non-motorized serious injuries 
number.
    (b) The State-reported serious injury data and non-motorized 
serious injury data will be taken from the HSIP report in accordance 
with 23 CFR part 924.
    (c) The FHWA will evaluate whether a State DOT has met or made 
significant progress toward meeting performance targets.
    (1) The FHWA will not evaluate any additional targets a State DOT 
may establish under Sec.  490.209(b).
    (2) A State DOT is determined to have met or made significant 
progress toward meeting its targets when at least four of the 
performance targets established under Sec.  490.207(a) are:
    (i) Met; or
    (ii) The outcome for a performance measure is less than the 5-year 
rolling average data for the performance measure for the year prior to 
the establishment of the State's target. For example, of the State 
DOT's five performance targets, the State DOT is determined to have met 
or made significant progress toward meeting its targets if it met two 
targets and the outcome is less than the measure for the year prior to 
the establishment of the target for two other targets.
    (d) If a State DOT has not met or made significant progress toward 
meeting performance targets in accordance with paragraph (c) of this 
section, the State DOT must comply with 23 U.S.C. 148(i) for the 
subsequent fiscal year.
    (e) The FHWA will first evaluate whether a State DOT has met or 
made significant progress toward meeting performance targets after the 
calendar year following the year for which the first targets are 
established, and then annually thereafter.


Sec.  490.213  Reporting of targets for the Highway Safety Improvement 
Program.

    (a) The targets established by the State DOT shall be reported to 
FHWA in the State's HSIP annual report in accordance with 23 CFR part 
924.
    (b) The MPOs shall annually report their established safety targets 
to their respective State DOT, in a manner that is documented and 
mutually agreed upon by both parties.
    (c) The MPOs shall report baseline safety performance, VMT estimate 
and methodology if a quantifiable rate target was established, and 
progress toward the achievement of their targets in the system 
performance report in the metropolitan transportation plan in 
accordance with 23 CFR part 450. Safety performance and progress shall 
be reported based on the following data sources:
    (1) The most recent available Final FARS data for the fatality 
number. The FARS ARF may be used if Final FARS is not available;
    (2) The most recent available Final FARS and MPO VMT estimate for 
the fatality rate. The FARS ARF may be used if Final FARS is not 
available;
    (3) The most recent available Final FARS data for the non-motorized 
fatality number. The FARS ARF may be used if Final FARS is not 
available;
    (4) State reported data for the serious injuries number;
    (5) State reported data and MPO VMT estimate for the serious 
injuries rate; and
    (6) State reported data for the non-motorized serious injuries 
number.

[FR Doc. 2016-05202 Filed 3-14-16; 8:45 am]
 BILLING CODE 4910-22-P