[Federal Register Volume 69, Number 118 (Monday, June 21, 2004)]
[Proposed Rules]
[Pages 34314-34322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13839]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 650

[FHWA Docket No. FHWA-2001-9182]
RIN 2125-AE75


Highway Bridge Program

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: The FHWA is requesting comments on proposed revisions to its 
regulation governing the highway bridge replacement and rehabilitation 
program (HBRRP). This proposed action is necessary to incorporate 
program flexibility provided by the Intermodal Surface Transportation 
Efficiency Act of 1991 and the Transportation Equity Act for the 21st 
Century; incorporate FHWA policies implemented since inception of the 
HBRRP; provide further clarification of issues that have proven to be 
vague or ambiguous; and make the regulation easier to read and 
understand. The intent is to revise the regulation so that it better 
meets the need of State and local bridge owners while also meeting 
national goals for improving the condition of the Nation's bridges.

DATES: Comments must be received on or before August 20, 2004.

ADDRESSES: Mail or hand deliver comments to the U.S. Department of 
Transportation, Dockets Management Facility, Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590, or submit electronically at http://dmses.dot.gov/submit, or fax comments to (202) 493-2251. Alternatively, 
comments may be submitted via the Federal eRulemaking Portal at http://www.regulations.gov (follow the on-line instructions for submitting 
comments). All comments should include the docket number that appears 
in the heading of this document. All comments received will be 
available for examination and copying at the above address from 9 a.m. 
to 5 p.m., e.t., Monday through Friday, except Federal holidays. Those 
desiring notification of receipt of comments must include a self-
addressed, stamped postcard or you may print the acknowledgment page 
that appears after submitting comments electronically. Anyone is able 
to search the electronic form of all comments received into any of our 
dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may

[[Page 34315]]

review DOT's complete Privacy Act Statement in the Federal Register 
published on April 11, 2000 (Volume 65, Number 70, Pages 19477-78) or 
you may visit http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Everett, Federal Highway 
Administration, Office of Bridge Technology, HIBT-30, 400 Seventh 
Street, SW., Washington, DC 20590-0001 or Mr. Robert Black, Office of 
the Chief Counsel, HCC-30, (202) 366-1359, Federal Highway 
Administration, 400 Seventh Street, SW., Washington, DC 20590-0001. 
Office hours are from 7:45 a.m. to 4:15 p.m. e.t., Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    You may submit or retrieve comments online through the Document 
Management System (DMS) at: http://dmses.dot.gov/submit. Acceptable 
formats include: MS Word (versions 95 to 97), MS Word for Mac (versions 
6 to 8), Rich Text File (RTF), American Standard Code Information 
Interchange (ASCII)(TXT), Portable Document Format (PDF), and 
WordPerfect (versions 7 to 8). The DMS is available 24 hours each day, 
365 days each year. Electronic submission and retrieval help and 
guidelines are available under the help section of the Web site.
    An electronic copy of this document may also be downloaded by using 
a computer, modem and suitable communications software from the 
Government Printing Office Electronic Bulletin Board Service at (202) 
512-1661. Internet users may also reach the Office of the Federal 
Register's home page at: http://www.archives.gov and the Government 
Printing Office's Web page at: http://www.access.gpo.gov/nara.

Background

    Section 204 of the Federal-aid Highway Act of 1970 (Public Law 91-
605, 84 Stat. 1713, Dec. 31, 1970) established the Special Bridge 
Replacement Program (SBRP). Under this program codified in 23 U.S.C. 
144, structurally inadequate or functionally obsolete bridges on the 
Federal-aid system were eligible for replacement or rehabilitation. 
Section 124 of the Surface Transportation Assistance Act of 1978 
(Public Law 95-599, 92 Stat. 2689, 2702, Nov. 6, 1978) amended and 
retitled 23 U.S.C. 144, relative to the SBRP, to create the Highway 
Bridge Replacement and Rehabilitation Program (HBRRP). The HBRRP was 
applicable to on-system and off-system bridges. The purpose of the 
program was to assist the States in the replacement and rehabilitation 
of bridges declared unsafe because of structural deficiencies, physical 
deterioration, or functional obsolescence. The FHWA published 
regulations to provide guidance and establish procedures for 
administering the HBRRP at 44 FR 15665 on March 15, 1979. The 
regulation for administering the HBRRP is contained in 23 CFR part 650, 
subpart D. The Intermodal Surface Transportation Efficiency Act of 1991 
(ISTEA) (Public Law 102-240, 105 Stat. 1914, Dec. 18, 1991) and the 
Transportation Equity Act for the 21st Century (TEA-21) (Public Law 
105-178, 112 Stat. 107 (1998)) provided considerable flexibility to the 
States with regard to the overall Federal-aid program.
    The FHWA recognizes that the current regulation needs to be revised 
to incorporate and clarify past policies as well as accommodate the 
flexibility allowed by law to enable State and local governments to 
manage their bridge assets in the most effective manner. Accordingly, 
the FHWA published an advanced notice of proposed rulemaking (ANPRM) on 
September 26, 2001 (66 FR 49152), requesting public comments on the 
current regulation.

Discussion of Comments Received to the Advance Notice of Proposed 
Rulemaking (ANPRM)

    On September 26, 2001 (66 FR 49152), the FHWA published an ANPRM to 
solicit comments on whether to revise the HBRRP regulation. Forty-one 
sets of comments were submitted to the docket representing 31 State 
Departments of Transportation, 1 Federal agency, 3 counties, 1 private 
citizen, 2 trade associations and 1 public interest group. In summary, 
the majority of the commenters believed the HBRRP regulation should be 
revised.
    The FHWA posed eight questions in the ANPRM. A general discussion 
of the questions and docket comments is provided in the next few 
paragraphs. A detailed discussion of comments is provided in the 
Section-by-Section Analysis.
    The first two questions dealt with the definition of major 
reconstruction and rehabilitation. Currently, a bridge is eligible for 
HBRRP funding if it is undergoing major reconstruction. Although 
``major reconstruction'' is not specifically defined in 23 CFR part 
650, it is interpreted to mean rehabilitation or replacement as defined 
under 23 CFR 650.405(b). In the ANPRM, the FHWA solicited suggestions 
for modifications to the definitions. The majority of commenters 
recommended either the addition of preventive maintenance to the 
reconstruction definition or inclusion of the term as a stand-alone 
definition in 23 CFR part 650. Several commenters identified specific 
activities that they would like to see eligible for funding under the 
HBRRP regardless of a bridge's eligibility status. These comments will 
be summarized in the response to question 5 under this heading.
    The third question requested suggestions for increased flexibility 
within the regulation that would improve the effectiveness of the 
bridge program. In general, the majority of commenters encouraged the 
FHWA to expand the types of eligible work activities and/or allow 
bridge owners greater latitude in the selection of work activities and 
associated bridges.
    The fourth question asked if there should be national consistency 
on the appropriate standard(s) to be followed on all bridges that are 
not dependent upon highway classification. Commenters were divided on 
this issue.
    Question five provided a list of activities that are not currently 
considered eligible for HBRRP funding, and asked if the definition of 
major reconstruction should be adjusted to include some or all of the 
listed items. The majority of commenters provided specific 
recommendations for items that should be considered eligible for 
funding. In addition, many commenters offered additional suggestions 
for eligible work activities, either in response to question five or 
one of the previous questions.
    The ANPRM did not include a question six.
    With respect to question seven regarding use of the sufficiency 
rating for establishing eligibility and priority for HBRRP funding, 
comments ranged from supporting continued use of the sufficiency rating 
and revising the current sufficiency rating formula, to the need for an 
alternate process.
    The eighth question related to the current process of using three-
year averages of bridge construction unit costs for determining 
apportionment factors. The FHWA also requested ideas for improving the 
accuracy of the unit cost data. A few commenters supported the current 
process while others identified weaknesses in the process. Eighteen 
commenters did not provide a specific response to this question.
    The ninth question requested suggestions for modifications, as 
deemed necessary, to current Sec.  650.411 provisions. Section 650.411 
outlines the procedures for bridge replacement and rehabilitation 
projects. Nearly half of the commenters recommended no change to the 
current procedures. Eleven

[[Page 34316]]

commenters did not provide a specific response to this question.

Summary of the Proposed Revisions to the HBRRP

    The proposed revisions to the HBRRP are based in part on comments 
received to ANPRM. The FHWA proposes to change the name of the program 
under Subpart D from Highway Bridge Replacement and Rehabilitation 
Program to Highway Bridge Program. By removing the terms replacement 
and rehabilitation from the title, the proposed name change recognizes 
the importance and benefits of preventive maintenance activities that 
are identified and undertaken on a systematic basis. The title change 
also reflects the inclusion of other activities that are eligible for 
funding under this program in addition to replacement and 
rehabilitation. The Highway Bridge Program title is more general and 
thus inclusive of many eligible activities, such as the funding of 
bridge inspection programs, which do not specifically fall under 
rehabilitation or replacement.
    We have proposed to add several definitions to address ambiguous 
areas in the current regulation as well as to describe terminology used 
in the proposed changes. The FHWA proposes to clarify existing program 
procedures and add flexibility to the regulation by incorporating 
alternative program procedures for selecting eligible work activities 
based on the use of a bridge management system. The FHWA also proposes 
to clarify the types of eligible and ineligible work. The proposed 
regulation also eliminates language that simply repeats provisions of 
23 U.S.C. 144, Highway Bridge Replacement and Rehabilitation Program.

Section-by-Section Discussion of the Proposals

Proposed Section 650.401 Purpose

    The FHWA proposes to change the name of the program from ``Highway 
Bridge Replacement and Rehabilitation Program'' to ``Highway Bridge 
Program.'' This change would recognize the importance and benefits of 
preventive maintenance activities that are identified and undertaken on 
a systematic basis. The title change would also reflect the inclusion 
of other activities that are eligible for funding under this program in 
addition to replacement and rehabilitation.

Proposed Section 650.403 Definitions

    The Michigan, New Jersey, Delaware, Wyoming, Arkansas, New York, 
Utah, and Alcona County DOT (Michigan) commenters believe that the 
current definition of major reconstruction is adequate. The FHWA 
proposes to leave the definitions of replacement and rehabilitation 
essentially unchanged and to add a separate definition for preventive 
maintenance. However, to address a comment from Iowa, the FHWA proposes 
to modify the rehabilitation definition by adding a sentence that 
provides example categories of major safety defects. This proposed 
change would address comments by both the Bureau of Indian Affairs and 
the New Hampshire DOT that recommended including bridge widening in the 
definition of rehabilitation.
    Furthermore, the FHWA proposes that the definition for 
rehabilitation be expanded to include ``the major work required to 
extend the useful life of bridge.'' This addition should address the 
opinions of twenty-two commenters who indicated they would like to see 
preventive maintenance activities added to the major reconstruction 
definition. This expanded definition would also address the comment of 
the Florida DOT that the installation of cathodic protection systems be 
included in the definition of rehabilitation.
    Several commenters also indicated that they would prefer to see 
preventive maintenance added as a separate category rather than 
incorporating it into the definition of major reconstruction. These 
comments are also addressed through the proposed change that would 
allow preventive maintenance activities identified through an approved 
systematic process to be an eligible activity on all highway bridges. 
In addition, further flexibility would be permitted under the Alternate 
Program described in proposed Sec.  650.411.
    The FHWA proposes to add definitions for the following terms in 
order to address past ambiguities and explain terms related to the 
alternate program procedures proposed in Sec.  650.411: approved, 
eligible highway bridge, Federal-aid highways, bridge management 
system, bridge performance goals, bridge performance plan, preventive 
maintenance, safety improvements, and systematic process.

Proposed Section 650.405 Eligible and Ineligible Activities

    The FHWA proposes to change the section title from ``Eligible 
projects'' to ``Eligible and Ineligible Activities.'' The proposed 
title distinguishes between projects and activities. ``Project'' is 
defined in 23 CFR 1.2 for undertaking highway construction work or 
activities to carry out the provisions of Federal law for 
administration of Federal aid for highways. Section 106 of title 23, 
U.S.C., requires the States to enter into an agreement with FHWA for 
each Federal-aid highway project. This formal agreement defines the 
scope of work and project related commitments and constitutes the 
Federal obligation to pay its share of the project costs. Although 
``activity'' is a broad term relative to Federal-aid projects, for the 
purpose of this rulemaking, it describes the types of work eligible for 
Federal participation under this program. Federal participation in 
these activities is limited to costs directly attributable and properly 
allocable to specific projects. The FHWA proposes to focus on eligible 
and ineligible activities within the regulation.
    As discussed in the ``Proposed Section 650.403 Definitions,'' 
twenty-two commenters indicated that they would like to see preventive 
maintenance activities added to the major reconstruction definition. 
Therefore, the FHWA proposes to expand the definition for 
``rehabilitation'' to include ``the major work required to extend the 
useful life of a bridge.'' In addition, the FHWA proposes to allow for 
``preventive maintenance activities identified through an approved 
systematic process'' to be eligible on all highway bridges on public 
roads. This would also be available in proposed Sec.  650.407.
    Seventeen commenters encouraged the FHWA to expand the types of 
eligible work activities and/or allow bridge owners greater flexibility 
in the selection of work activities and associated bridges. This 
proposed section, along with proposed Sec.  650.407, does address these 
comments by proposing to expand the list of activities that may be 
eligible for funding under the Highway Bridge Program as well as 
proposing to expand the list of bridges on which many of these 
activities may be performed.
    Several commenters identified specific activities that they would 
like to see eligible for funding under the HBRRP regardless of a 
bridge's eligibility status. For example, twenty-three commenters were 
in favor of including safety feature replacement or upgrading and 
twenty-two commenters were in favor of including emergency repair to 
restore structural integrity following an accident.
    With respect to use of HBRRP funds for emergency related work 
activities, the Bureau of Indian Affairs recommended that eligibility 
be limited to those emergencies that are not covered by Federal 
Emergency Relief funding.

[[Page 34317]]

    Twenty-one commenters were in favor of including bridge deck 
overlays. The Maine, Oregon, South Dakota, Colorado, and Kansas DOT's 
stated that they were in favor of protective or structural overlays 
only.
    Seventeen commenters were in favor of including retrofitting to 
correct deficiencies, without significantly altering physical geometry 
or increasing load capacity.
    Seventeen commenters were in favor of including work performed to 
keep a bridge operational while plans for complete rehabilitation or 
replacement are under preparation.
    The majority of commenters were either opposed to, or silent on, 
the inclusion of utility work and the cost of long approach fills, 
causeways, connecting roadways, interchanges, ramps, and other 
extensive earth structures.
    The Arizona, California, Connecticut, Alaska, New York, and 
Washington DOT's, along with a private citizen, would like installation 
of scour countermeasures added as an eligible activity for all bridges.
    The Arizona, California, New York, and Oregon DOT's, along with a 
private citizen, would like seismic retrofit added as an eligible 
activity for all bridges.
    The Delaware, Washington, California, New York, Iowa, and Oregon 
DOT's would like painting added as an eligible activity for all 
bridges.
    The Bureau of Indian Affairs, New Jersey DOT, and Anderson County 
in South Carolina recommended considering any work activity that 
protects the structural integrity of a bridge as eligible for funding 
under the HBRRP.
    The Oregon DOT recommended that historic non-deficient structures 
be considered eligible for HBRRP funding.
    The New York DOT recommended retrofit of fatigue prone details as 
an eligible activity for all bridges.
    The Wyoming DOT recommended that the work required to accommodate 
traffic during construction be considered eligible for HBRRP funding.
    In response to these suggestions, the FHWA proposes to provide a 
list of eligible work activities. The list would include many of the 
activities recommended by the commenters such as installation of scour 
countermeasures, seismic retrofit, preventive maintenance activities 
identified through an approved systematic process, and safety 
improvements on all bridges on public roads. Application of these 
activities to specific bridges is addressed in proposed Sec. Sec.  
650.407 and 650.411. The inclusion of preventive maintenance as an 
eligible activity and the proposed alternative approach in Sec.  
650.411 would give the States the flexibility to perform safety and 
preventive maintenance activities on bridges identified through a 
systematic process, as part of a rehabilitation project, or in their 
bridge management system (BMS). All bridges, including historic 
bridges, would be eligible for preventive maintenance activities; 
additional flexibility may be available under the proposed alternate 
program.
    Similarly, the FHWA proposes to address ineligible work activities 
in Sec.  650.405(b). The FHWA concurs with the commenters who indicated 
that the cost of utility work and long approach fills, causeways, 
connecting roadways, interchanges, ramps, and other extensive earth 
structures, when constructed beyond attainable touchdown points, should 
be considered ineligible for HBRRP funding. Twenty-two commenters 
expressed a concern favoring the inclusion of emergency structural 
repairs as an eligible HBR activity following accidental damage to a 
bridge. Federal funds may participate in emergency situations with 
Emergency Relief funds following a declared emergency \1\ or through 
the force account provisions \2\ available in 23 CFR 635.204, as 
applicable, but these provisions do not lend themselves to the lesser 
emergencies resulting from typical accidental bridge damage. The use of 
Federal highway funding implies that a Federal-aid construction project 
is developed including planning, programming, environmental clearance, 
and competitive bidding, which is a lengthy process not suitable for 
most emergency work. This process is abbreviated only as specified in 
the regulations cited above and for this reason leaves most emergency 
work as the responsibility of the bridge owner.
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    \1\ See 23 U.S.C. 120 and 125.
    \2\ Force account means the direct performance of highway 
construction work by a State, county, railroad, or public utility 
company by use of labor, equipment, materials and supplies furnished 
by them and used under their direct control. Under the emergency 
provisions of 23 CFR 635.204, the FHWA may approve a federally 
financed highway construction project by the force account methods.
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    The FHWA does not agree with the seventeen entities that 
recommended that work performed to keep a bridge operational while 
plans for rehabilitation or replacement are being prepared should be an 
eligible HBP activity. Funds available under this Highway Bridge 
Program should focus on the removal of deficiencies, or on activities 
that prevent future deficiencies, rather than on temporary measures 
that do not completely address bridge deficiencies. This position does 
not eliminate the eligibility of work planned as an initial stage of 
construction or work performed as preventive maintenance through a 
Federal-aid construction project.

Proposed Section 650.407 Applicability

    There were no specific comments on this topic.
    The FHWA proposes to change the section title from ``Application 
for bridge replacement or rehabilitation'' to ``Applicability'' to 
address changes in other sections of the regulation.
    The FHWA proposes to relocate and revise, or delete information 
contained in the current Sec.  650.407. Specifically, we propose to 
revise and relocate paragraphs (a) and (b) to proposed Sec.  650.409, 
Program procedures and requirements. The proposed revisions will be 
discussed later. We propose to remove paragraph (c) because it is a 
repeat of a requirement in 23 CFR 650, Subpart C, National Bridge 
Inspection Standards.
    In proposed Sec.  650.407, the FHWA intends to clarify the bridges 
on which the work activities described in proposed Sec.  650.405 may be 
undertaken. A distinction would be made between activities that may be 
performed on all bridges on public roads versus eligible highway 
bridges on public roads. The FHWA proposes a definition of an 
``eligible highway bridge'' for inclusion in Sec.  650.403.

Proposed Section 650.409 Program Procedures and Requirements

    The FHWA proposes to change the section title from ``Evaluation of 
bridge inventory'' to ``Program procedures and requirements.'' The 
proposed section would combine provisions from the current Sec. Sec.  
650.407, 650.409, and 650.411 into an orderly format that follows the 
project development process.
    As stated in the current regulation, the FHWA has used a 
sufficiency rating as a basis for establishing eligibility and priority 
for replacement or rehabilitation of bridges; in general, the lower the 
rating, the higher the priority. The formula for calculating the 
sufficiency rating was established by the FHWA, through consultation 
with the American Association of State Highway Transportation Officials 
(AASHTO), shortly after passage of the Federal-aid Highway Act of 1970. 
The formula provides a composite rating based on bridge data collected 
and reported in accordance with the ``Recording and

[[Page 34318]]

Coding Guide for the Structure Inventory and Appraisal of the Nation's 
Bridges'', Report No. FHWA-PD-96-001.\3\ Four separate factors are used 
to obtain an overall numeric value, ranging from 0 to 100, which is 
indicative of bridge sufficiency to remain in service. The four factors 
considered are structural adequacy and safety, serviceability and 
functional obsolescence, essentiality for public use, and special 
reductions for items such as detour length and substandard safety 
features. The formula does not appear in regulations; however, it is 
published in appendix B of the ``Recording and Coding Guide for the 
Structure Inventory and Appraisal of the Nation's Bridges''. Only minor 
modifications have been made to the formula since its inception.
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    \3\ This document is available at: http://www.fhwa.dot.gov/bridge/mtguide.pdf and may be inspected and copied as prescribed at 
49 CFR part 7.
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    Twelve commenters recommended no change to the use of a sufficiency 
rating; however, seven of these commenters noted weaknesses or 
limitations in the current process such as incorrect parameters in the 
sufficiency rating formula and that the current process is good for 
identifying replacement needs, but not rehabilitation or preventive 
maintenance.
    The North Dakota, Massachusetts, and Oregon DOTs noted that they do 
not currently use the sufficiency rating for prioritization of bridges.
    Ten commenters indicated that the use of a sufficiency rating was 
acceptable for eligibility and/or apportionment determinations; 
however, individual States should have the flexibility to prioritize 
their work on all bridges.
    Twenty-three commenters recommended significant changes to the 
current process, or alternate processes for determining eligibility and 
priorities.
    The FHWA recognizes that the sufficiency rating is a suitable and 
effective means for determining eligibility and an initial 
prioritization of needs for many bridge owners. The FHWA also 
recognizes that through the implementation and advancement of bridge 
management systems, many bridge owners now have improved processes for 
evaluating bridge needs and prioritizing those needs. Accordingly, the 
FHWA is proposing to offer more flexibility to determine bridge 
eligibility as follows:
    1. Bridge owners can continue to use the selection list for their 
bridge replacement and rehabilitation program with provisions that 
allow painting, seismic retrofit, installation of scour 
countermeasures, and application of anti-icing and de-icing technology 
on all bridges. They can further enhance this program to perform safety 
and preventive maintenance activities identified through approved 
systematic processes.
    2. Bridge owners can employ an approved Bridge Management System to 
determine eligible projects and activities on all bridges.
    Regardless of the option the bridge owner selects, Federal-aid 
projects and activities must ultimately be programmed through the 
intermodal statewide transportation planning process outlined in 23 CFR 
450, subpart B. This process involves the development of a statewide 
transportation improvement program that defines a staged, multi-year, 
intermodal program of transportation projects.
    It is our intent that approvals of systematic processes would 
include the development of goals and measures for the types of 
activities included in the systematic process and annual reports on 
progress. Owners that choose the BMS approach will develop goals and 
measures for their entire bridge inventory covered under their BMS and 
report annually to the FHWA on their progress. The FHWA proposes to 
retain the sufficiency rating and the method of distributing HBRRP 
funds for the new HBP program. Since the sufficiency rating formula is 
not part of the regulation, comments regarding weaknesses in the 
current formula can be considered and addressed by the FHWA without 
requiring a change in the regulation.
    Currently, the FHWA uses three-year averages of bridge construction 
unit costs for determining apportionment factors. Eighteen commenters 
did not comment on this process. The Delaware, California, Oregon, 
South Dakota, Missouri, Kansas, and Oklahoma DOTs, along with the 
commenter from Alcona County, Michigan, indicated that the current 
process was acceptable.
    The New Jersey, Wyoming, Alaska, New Hampshire, and New York DOTs, 
as well as the American Road and Transportation Builders Association 
(ARTBA) commenter, indicated that the current unit cost does not 
adequately consider other significant project costs such as 
mobilization and environmental mitigation.
    Commenters from Arizona and Nevada DOTs indicated that the unit 
cost process did not affect them since they received minimum 
allocations. Several commenters offered alternate methods for 
determining apportionment factors.
    On an annual basis, the FHWA issues, via a Memorandum from our 
Headquarters Office of Bridge Technology, a call for the collection of 
bridge construction unit cost data. The memorandum includes specific 
instructions for reporting the data. The most recent call was issued on 
December 30, 2003.\4\ The FHWA proposes to continue the annual 
collection of bridge construction unit cost data and use this data for 
the determination of apportionment factors. The process has been well 
understood and used for a number of years and there is no compelling 
reason to change at this time. Comments regarding weaknesses in the 
current calculation can be considered and addressed by the FHWA without 
requiring a change in the regulation.
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    \4\ The most recent memorandum requesting this information is 
available at the following URL: http://www.fhwa.dot.gov/bridge/123003.htm.
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    Seventeen commenters stated that the current procedures for 
evaluation of the bridge inventory, as described in Sec.  650.411, 
should not be changed. The North Dakota, Delaware, Kansas, and 
Washington DOTs recommended that the FHWA provide additional 
flexibility in project type and selection.
    Two county commenters, Alcona in Michigan and Siskiyou in South 
Carolina, recommended that the FHWA streamline the environmental review 
process. Alcona County, Michigan, and the National Association of 
County Engineers requested additional flexibility in the selection of 
design guidelines. The Alaska DOT asked that National Bridge Inventory 
data be accepted in English units of measure. The Utah DOT would like 
to see responsibility for ensuring future maintenance as described in 
Sec.  650.411(c)(1) shifted to the local governments since the State 
has no authority over requiring the local governments to maintain their 
bridges.
    Seventeen commenters were opposed to establishing national 
standards that are not dependent upon highway classification. Ten 
commenters were in favor of national standards. Of these ten, Alcona 
County, Oklahoma, Illinois, and the National Association of County 
Engineers were in favor of a national standard for determining 
eligibility, but not for design purposes.
    The FHWA agrees with the majority of commenters who were not in 
favor of requiring national consistency on appropriate standards that 
are not dependent upon highway classification. The FHWA proposes to 
retain the

[[Page 34319]]

requirement that all bridge program activities must conform to 23 CFR 
625, Design Standards for Highways. States that choose to perform 
safety improvements or preventive maintenance activities are encouraged 
to work with the FHWA Division Administrator in their State to 
determine the applicability of the design standards in 23 CFR 625 to 
those activities as discussed in Sec.  625.3(e).
    Currently, 23 CFR 650.407(a) requires Federal agencies to submit 
their bridge inspection data to the appropriate State agency for review 
and processing. On January 4, 1995, the FHWA issued a policy memorandum 
\5\ enabling Federal agencies to annually submit their data directly to 
the FHWA. The purpose of this change was to ensure timeliness and 
uniformity in data submission. The data is processed into the National 
Bridge Inventory by FHWA and is uniquely identified as data for bridges 
owned by Federal agencies. After processing, a copy of each State's 
portion of this data is extracted and sent through organizational 
channels to the various State highway agencies, thereby enabling the 
States to comply with the National Bridge Inspection Standards of 23 
CFR 650 while also relieving them of the obligation of collecting and 
submitting data from various Federal agencies. The FHWA proposes to 
change the wording in the regulation to reflect the direction outlined 
in the January 4, 1995 memorandum.
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    \5\ This memorandum, subject ``Federal Bridges in the National 
Bridge Inventory,'' is available at the following URL: http://www.fhwa.dot.gov/bridge/010495.htm.
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Proposed Section 650.411 Alternate Program

    Seventeen commenters encouraged the FHWA to expand the types of 
eligible work activities and/or allow bridge owners greater flexibility 
in the selection of work activities and associated bridges.
    The Delaware, North Carolina, Pennsylvania, Alaska, South Carolina, 
Colorado, Kansas, Oklahoma, and Florida DOTs specifically recommended 
that bridge owners be allowed to select bridges and work activities 
based on output from their bridge management systems.
    The Advocates for Highway and Auto Safety (AHAS) noted that the 
HBRRP has worked well and should not be changed to allow for the 
diversion of HBRRP funds, which are intended for rehabilitation and 
reconstruction, to routine maintenance activities.
    The American Road and Transportation Builders Association (ARTBA) 
noted that significant changes to the HBRRP regulation that could 
affect funding levels should not be undertaken; however, ARTBA is in 
favor of changes that provide the States more flexibility in the 
selection of bridges for funding.
    The FHWA recognizes that the effective use of a comprehensive 
bridge management system necessitates flexibility in the selection of 
work activities and associated bridges. Furthermore, the use of bridge 
management systems has increased over the past decade, and computer 
bridge management tools have seen significant improvements in 
functionality and modeling capabilities. In recognition of these 
technological and program management advances, as well as the strong 
desire of bridge owners for increased flexibility, the FHWA proposes to 
add an alternate planning and programming approach to the regulation. 
Proposed Sec.  650.411 Alternate Program would allow those States with 
an approved BMS and bridge performance goals to use Federal bridge 
program funds for the type of work activities identified in proposed 
Sec.  650.405(a) on all public road highway bridges that are included 
in the BMS, regardless of a bridge's eligibility status. Use of the 
alternate approach requires development and periodic review of a bridge 
performance plan, outlining performance goals and measures that 
demonstrate an overall reduction in bridge deficiencies. The FHWA will 
identify key attributes of a BMS and bridge performance plan that will 
serve as guidance for approval of these items by FHWA Division 
Administrators.
    The FHWA does not consider this flexibility to be a diversion of 
funds from reconstruction and rehabilitation, but rather a more 
effective use of limited funds. The primary goal of the program is 
still to ensure that bridges most in need of repair or replacement 
receive priority. The FHWA recognizes and acknowledges the advantages 
offered by prioritizing needs and selecting work activities through an 
effective and systematic BMS as currently employed in several States. 
Comprehensive bridge management systems have proven effective for 
evaluating the long-term effects of programming decisions as well as 
maintaining safe condition levels on all bridges. Additionally, the 
FHWA recognizes that the identification and implementation of cost-
effective preventive maintenance activities on a systematic basis is 
critically important to protect our investment and reduce future major 
reconstruction and replacement needs.
    In summary, we are proposing several changes that recognize that 
importance of preserving our bridge inventory while still ensuring a 
safe condition level through replacement and rehabilitation of those 
bridges that have become deficient. We are proposing to incorporate 
additional flexibility in the selection of activities and bridges by 
the owners to take advantage of improved cost-effective decision-making 
tools. Finally, we have proposed several revisions that serve to 
clarify terms and policies that have been ambiguous in the past.

Related Rulemakings and Notices

    The FHWA is in the process of reviewing 23 CFR 650, Subpart C, 
National Bridge Inspection Standards (NBIS), and published a notice of 
proposed rulemaking for the NBIS on September 9, 2003, at 68 FR 53063.

Rulemaking Analyses and Notices

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination in the docket at the above address. Comments received 
after the comment closing date will be filed in the docket and will be 
considered to the extent practicable. In addition to late comments, the 
FHWA will also continue to file relevant information in the docket as 
it becomes available after the comment period closing date, and 
interested persons should continue to examine the docket for new 
material. A final rule may be published at any time after close of the 
comment period.

Executive Order 12866 (Regulatory Planning and Review) and U.S. DOT 
Regulatory Policies and Procedures

    The FHWA has determined preliminarily that this action would not be 
a significant regulatory action within the meaning of Executive Order 
12866 and would not be significant within the meaning of the U.S. 
Department of Transportation regulatory policies and procedures. The 
proposed regulatory changes increase the decision-making flexibility of 
the States and extend eligibility to include activities that preserve 
bridges and prevent further deterioration, thereby extending the useful 
service life of existing bridges. While the proposed changes have the 
potential to change the number of bridges eligible for funding under 
the program, the method for distributing total program funds remains 
the same. Accordingly, it is anticipated that the economic impact of 
this rulemaking would be minimal.

[[Page 34320]]

    These proposed changes would not adversely affect, in a material 
way, any sector of the economy. In addition, these changes would not 
interfere with any action taken or planned by another agency and would 
not materially alter the budgetary impact of any entitlements, grants, 
user fees, or loan programs. Consequently, a full regulatory evaluation 
is not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612) the FHWA has evaluated the effects of this proposed 
action on small entities. These proposed changes are primarily directed 
at States, which are not considered small entities for the purposes of 
the Regulatory Flexibility Act. Therefore, the FHWA is able to 
preliminarily certify that this proposed rule would not have a 
significant economic impact on a substantial number of small entities. 
The FHWA welcomes comments on this analysis.

Unfunded Mandates Reform Act of 1995

    This proposed 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 proposed rule will not result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any one 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 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

    We have analyzed this proposal under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This proposed rule is not an economically significant rule and 
does not concern an environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This proposal will not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Executive Order 13132 (Federalism)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132, and the 
FHWA has determined that this proposed action would not have sufficient 
Federalism implications to warrant the preparation of a Federalism 
assessment. The FHWA has also determined that this proposed action 
would not preempt any State law or State regulation or affect the 
States' ability to discharge traditional State governmental functions.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this proposal under Executive Order 13175, 
dated November 6, 2000. The FHWA believes that this proposal will not 
have substantial direct effects on one or more Indian tribes; will not 
impose substantial direct compliance costs on Indian tribal 
governments; and will not preempt tribal law. Therefore, a tribal 
summary impact statement is not required.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway Planning and Construction. The regulations implementing 
Executive Order 12372 regarding intergovernmental consultation on 
Federal programs and activities apply to this program. Accordingly, the 
FHWA solicits comment on this issue.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations.
    The regulation described in this notice of proposed rulemaking 
would enable bridge owning agencies to select eligible structures for 
Highway Bridge Program funds by either using the current processes or 
an alternative process based on bridge management system approaches. 
The current process is based on a currently OMB approved information 
collection, Structure Inventory and Appraisal (SI&A) Sheet, OMB control 
number 2125-0501 scheduled to expire on July 31, 2004.
    If a bridge owning agency chooses to use the proposed alternative 
process, reports would be required to document the agency's goals and 
assess its performance toward achieving the goals. The FHWA intends to 
request OMB approval under the PRA of the information collection 
associated with the alternative process proposed in this NPRM. The 
information required under the proposed alternative process would fall 
under a new information collection that the FHWA intends to request 
approval of this new collection from OMB.
    A paperwork reduction act submission has been completed for the 
collection associated with the proposed alternate process collection 
and will be submitted to OMB. Primary affected public agencies include 
State, local or Tribal governments with secondary application to 
Federal agencies. The number of respondents is expected to be below 52 
with a total of 208 burden hours annually for these agencies. Costs 
would be constrained to annualized Operation and Maintenance Costs 
estimated at $10,400 or less nationally, depending on the number of 
agencies electing to use the alternative program. Recordkeeping would 
be required for programming planning and management and for program 
evaluation and would be required annually. Statistical methods would 
not be required and all information could be submitted in electronic 
form. Moreover, information would be submitted in the format chosen by 
the bridge owning agency.
    Interested parties are invited to send comments regarding any 
aspect of these information collection requirements, including, but not 
limited to: (1) Whether the collection of information would be 
necessary for the performance of the functions of the FHWA, including 
whether the information would have practical utility; (2) the accuracy 
of the estimated burden; (3) ways to enhance the quality, utility, and 
clarity of the collection of information; and (4) ways to minimize the 
collection burden without reducing the quality of the information 
collected.

National Environmental Policy Act

    The agency has analyzed this proposed action for the purpose of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321) and has 
determined that this proposed action would not have any effect on the 
quality of the environment.

[[Page 34321]]

Executive Order 13211 (Energy Effects)

    We have analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a significant 
energy action under that order, because although it is not a 
significant regulatory action under Executive Order 12866 and it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, it does not require a 
statement of energy effects under Executive Order 13211.

Regulation Identification Number

    A regulation identification number (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 650

    Bridges, Grant Programs--transportation, Highways and roads, 
Reporting and recordkeeping requirements.

    Authority: 23 U.S.C. 144 and 315; 49 CFR 1.48.

    Issued on: June 14, 2004.
Mary E. Peters,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA proposes to amend, 
title 23, Code of Federal Regulations, part 650, subpart D, as set 
forth below:

PART 650--BRIDGES, STRUCTURES, AND HYDRAULICS

    1. Revise the authority citation for part 650 to read as follows:

    Authority: 23 U.S.C. 109(a) and (h), 116(d), 144, 151, 315, and 
319; 33 U.S.C. 401, 491 et seq.; 511 et seq.; sec. 4(b) of Pub. L. 
97-134, 95 Stat. 1699 (1981); sec. 161 of Pub. L. 97-424, 96 Stat. 
2097, at 3135 (1983); sec. 1311 of Pub. L. 105-178, as added by Pub. 
L. 105-206, 112 Stat. 842 (1998); 23 CFR 1.32; 49 CFR 1.48(b); E.O. 
11988 (3 CFR, 1977 Comp., p. 117); Department of Transportation 
Order 5650.2 dated April 23, 1979 (44 FR 24678).

    2. Revise subpart D to read as follows:

Subpart D--Highway Bridge Program

Sec.
650.401 Purpose.
650.403 Definitions.
650.405 Eligible and ineligible activities.
650.407 Applicability.
650.409 Program procedures and requirements.
650.411 Alternate Program.


Sec.  650.401  Purpose.

    The purpose of this subpart is to prescribe policies and outline 
procedures for administering the Highway Bridge Program (HBP) in 
accordance with 23 U.S.C. 144.


Sec.  650.403  Definitions.

    Terms used in this regulation are defined as follows:
    Approved. As used in this regulation, the term ``approved'' means 
the FHWA acceptance of the specified document, bridge management 
system, or systematic process proposed by the State.
    Bridge. A structure, including supports, erected over a depression 
or an obstruction, such as water, a highway, or a railway, having a 
track or passageway for carrying vehicular traffic or other moving 
loads, and having an opening measured along the center of the roadway 
of more than 20 feet between undercopings of abutments or spring lines 
of arches, or extreme ends of the openings for multiple boxes; it may 
also include multiple pipes, where the clear distance between openings 
is less than half of the smaller contiguous opening.
    Bridge Management System (BMS). A systematic process, approved by 
FHWA, used for analyzing bridge data to make forecasts and 
recommendations, and to provide the means by which bridge maintenance, 
rehabilitation, and replacement programs and policies may be 
efficiently considered as outlined in 23 CFR 500.107.
    Bridge performance goals. Established target goals that define the 
performance level at which the State intends to maintain its bridges.
    Bridge performance plan. A document, prepared by the State for 
approval by FHWA, that includes baseline reference data and clearly 
defined performance goals and measures that address an overall 
reduction of bridge deficiencies.
    Eligible highway bridge. A bridge on the current selection list or 
otherwise approved by FHWA to be eligible for Highway Bridge Program 
funding.
    Federal-aid highways. Refer to 23 CFR 470.103.
    Preventive maintenance. Activities performed on bridges or their 
elements to prevent, delay, or reduce deterioration.
    Rehabilitation. The major work required to restore the structural 
integrity and extend the useful life of a bridge as well as work 
necessary to correct major safety defects, which include substandard 
vertical clearance, approach roadway alignment, and bridge widths.
    Replacement. Total replacement of an eligible bridge with a new 
facility constructed in the same general traffic corridor.
    Safety improvements. Improvements to bridges that reduce the number 
or severity of vehicular crashes.
    Selection list. A list of bridges within each State that are 
eligible for the Highway Bridge Program. The list is generated by the 
FHWA annually using bridge inventory data.
    Sufficiency rating. The numerical rating of a bridge based on its 
structural adequacy and safety, essentiality for public use, and its 
serviceability and functional obsolescence.
    Systematic process. A methodology for identifying and prioritizing 
cost-effective work activities applied to a network or subset of 
bridges.


Sec.  650.405  Eligible and ineligible activities.

    (a) The following types of work are eligible for participation 
under the HBP, subject to the applicability provisions of Sec.  
650.407:
    (1) Replacement, including a nominal amount of approach work, 
sufficient to connect the new facility to the existing roadway or to 
return the gradeline to a reasonable and attainable touchdown point in 
accordance with good design practice.
    (2) Rehabilitation.
    (3) Application of calcium magnesium acetate, sodium acetate, or 
other environmentally acceptable, minimally corrosive anti-icing and 
de-icing compositions.
    (4) Installation of scour countermeasures.
    (5) Purchase and installation of the initial set of load posting 
signs immediately adjacent to the bridge.
    (6) Safety Improvements and preventive maintenance activities 
identified through an approved systematic process.
    (7) Seismic retrofit.
    (8) Bridge safety inspections and related activities (includes load 
rating and analysis).
    (9) Bridge Management System development and implementation.
    (10) Historic Bridge work as identified in Title 23, United States 
Code, Section 144(o).
    (11) Inventory bridges for historic significance.
    (12) Painting.
    (b) The following types of work are ineligible under the HBP:
    (1) Costs of long approach fills, causeways, connecting roadways, 
interchanges, ramps, and other extensive earth structures, when

[[Page 34322]]

constructed beyond the attainable touchdown point.
    (2) Utility work not associated with any other bridge activities.
    (3) Other activities deemed ineligible by FHWA on a case-by-case 
basis.


Sec.  650.407  Applicability.

    HBP funding may be used for Federal aid projects including:
    (a) The types of work activities identified in Sec.  650.405(a)(1), 
(a)(2), (a)(5) and (a)(10) on eligible highway bridges on public roads.
    (b) The types of work activities identified in Sec.  650.405(a)(3), 
(a)(4), (a)(6), (a)(7), (a)(8), (a)(9), (a)(11), and (a)(12) on all 
bridges on public roads.


Sec.  650.409  Program procedures and requirements.

    (a) State agencies participate in the HBP by conducting bridge 
inspections and submitting Structure Inventory and Appraisal (SI&A) 
inspection data to the FHWA. Local governments supply SI&A data to the 
State agency for review and processing. The State is responsible for 
submitting all public road SI&A bridge information, except for those 
bridges under Federal jurisdiction, to the FHWA for processing annually 
or upon request from the FHWA. Federal agencies will supply SI&A data 
directly to the FHWA. Requirements for data submission are prescribed 
in 23 CFR 650, the National Bridge Inspection Standards.
    (b) States are responsible for collecting bridge construction unit 
cost data for State and Local Government bridges and annually 
submitting data summaries to the FHWA for processing.
    (c) Inventory and bridge construction unit cost data may be 
submitted as available and must be submitted at such additional times 
as the FHWA may request.
    (d) Upon receipt and evaluation of the bridge inventory, a 
sufficiency rating will be assigned to each bridge by the Secretary in 
accordance with the FHWA sufficiency rating formula. The sufficiency 
rating will be used as a basis for establishing eligibility and may be 
used for determining priority for replacement or rehabilitation of 
bridges.
    (e) After evaluation of the inventory and assignment of sufficiency 
ratings, the Secretary will provide the States with selection lists of 
bridges that are eligible for the HBP. Eligible types of work may be 
selected for bridges that are on the list. Funding for work on bridges 
that are not on the current selection list must be approved by the 
FHWA.
    (f) HBP projects must be submitted by the State to the Secretary in 
accordance with 23 CFR 630, Subpart A, Project Authorization and 
Agreements.
    (g) Each approved project will be designed, constructed, and 
inspected for acceptance in the same manner as other projects on the 
system of which the project is a part. Design standards for all HBP 
activities must conform to the provisions of 23 CFR 625, Design 
Standards for Highways.
    (h) Whenever an eligible bridge is replaced or its deficiency 
alleviated by a new bridge under the bridge program, the eligible 
bridge must either be dismantled or demolished or its use limited to 
the type and volume of traffic the structure can safely service over 
its remaining life. For example, if the only deficiency of the existing 
structure is an inadequate roadway width and the combination of the new 
and existing structure can be made to meet current standards for the 
volume of traffic the facility will carry over its design life, the 
existing bridge may remain in place and be incorporated into the 
system.


Sec.  650.411  Alternate Program.

    The Alternate Program provides an alternative to the applicability, 
procedures, and requirements of Sec. Sec.  650.407 and 650.409(e).
    (a) In those States with an approved Bridge Management System (BMS) 
and a Bridge Performance Plan, HBP funding may be used for the types of 
work identified in Sec.  650.405(a) on all highway bridges on public 
roads that are included in a BMS regardless of a bridge's eligibility 
status.
    (b) A State's systematic process for planning and programming may 
supplement the BMS and will be used for unusual or new needs that 
cannot be addressed through the BMS.
    (c) States using the provisions of this alternate program are 
responsible for developing and implementing a Bridge Performance Plan 
approved by the FHWA. States are responsible for submitting an Annual 
Report to the FHWA over the plan's period, or at such additional times 
as the FHWA may request. The report will address the progress made in 
relation to the established bridge performance goals.
    (d) If the report cited in Sec.  650.411(c) indicates that a State 
is not meeting or making progress towards its established performance 
goals, then the report shall identify revised or additional strategies 
that should result in attainment of the goals. Failure of a State to 
identify and obtain approval for such strategies will disqualify such 
State from continuing to select projects using the alternate program in 
Sec.  650.411.

[FR Doc. 04-13839 Filed 6-18-04; 8:45 am]
BILLING CODE 4910-22-P