[Federal Register Volume 70, Number 68 (Monday, April 11, 2005)]
[Proposed Rules]
[Pages 18342-18343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7210]


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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: Withdrawal of proposed rulemaking and closing of public docket.

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SUMMARY: This document withdraws a proposed rulemaking action developed 
to revise the regulations governing the highway bridge replacement and 
rehabilitation program (HBRRP). The FHWA proposed to clarify ambiguous 
language, incorporate long-standing FHWA policies, and provide 
flexibility by including an alternate program applicable to all 
bridges, both on and off the Federal-aid system. However, during the 
comment period, we received comments questioning the legal authority 
for the alternative program as well as the quantitative benefits and 
impacts of the program. To evaluate these questions and issues, the 
FHWA is withdrawing the proposed rulemaking and intends to consider 
establishment of a special experimental program to quantitatively 
evaluate the benefits of the approach proposed in the alternative 
program.

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

    An electronic copy of this document may be downloaded by using a 
modem and suitable communications software from the Government Printing 
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet 
users may also reach the Federal Register's home page at: http://www.archives.gov and the Government Printing Office's database at 
http://www.gpoaccess.gov/nara/.

Background

    Section 204 of the Federal-aid Highway Act of 1970 (Pub. L. 91-605, 
84 Stat. 1713, Dec. 31, 1970) established the Special Bridge 
Replacement Program (SBRP) codified in 23 U.S.C. 144. Through 
subsequent legislation, the SBRP was expanded to create the Highway 
Bridge Replacement and Rehabilitation Program (HBRRP) applicable for 
both on and off-system structures. The FHWA has recognized that the 
current regulation is in need of revision 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. A team of 
Federal Highway Administration engineers addressed the comments 
received and a notice of proposed rulemaking (NPRM) was published on 
June 21, 2004 (69 FR 34314).
    The NRPM proposed to change the name of the program from the 
Highway Bridge Replacement and Rehabilitation Program (HBRRP) to the 
Highway Bridge Program (HBP) reflecting program flexibility provided 
through highway legislation and increasing emphasis on preventative 
maintenance. Definitions were added to the legislation to address past 
ambiguities. Eligible and ineligible activities were specified in the 
proposed regulation and guidance was provided on the types of bridges 
to which the eligible and ineligible activities could be applied. To 
take advantage of project selection flexibility, the proposed rule 
included an alternate program. Through this program, States would have 
the flexibility to select projects involving eligible activities on any 
bridge, irrespective of the eligibility criteria under the traditional 
program, given that an approved bridge management system (BMS) and/or 
systematic process was employed. Guidance for the approval of bridge 
management systems and for the development of a systematic process was 
provided as supplemental documents on the docket for public review. 
Development and implementation of a bridge performance plan was 
proposed as a prerequisite for use of the alternate program.

Comments Received in Response to the ANPRM and NPRM

    The FHWA received 41 sets of comments in response to the ANPRM from 
31 State Departments of Transportation, 1 Federal Agency, 3 Counties, 1 
Private Citizen, 2 Trade Associations and 1 Public Interest Group. The 
majority of these commenters believed that the HBRRP regulation should 
be revised. The comments received were summarized and discussed in 
detail in the NPRM.
    In response to the NPRM, the FHWA received 25 sets of comments from 
15 State Departments of Transportation, 4 Counties, 1 City, 3 Trade 
Associations, 1 Public Interest Group and 1 Private Citizen.
    Four commenters suggested that the name be changed to something 
other than the Highway Bridge Program (HBP) or the Highway Bridge 
Replacement and Rehabilitation Program (HBRRP). The National 
Association of County Engineers (NACE), the Illinois Association of 
County Engineers (IACE) and the Illinois DOT suggested changes to avoid 
confusion between the HBP and other Federal programs. Alcona County, 
Michigan, expressed concern that the name change would diminish the 
priority of replacement and rehabilitation.
    Commenters from DOTs, NACE, IACE, and several County Highway 
Departments suggested changes to the definitions. Suggestions were made 
to modify or enhance the definitions for: Bridge, Cost Effective, 
Rehabilitation, Eligible Highway Bridge, Bridge Management System, 
Construction Unit Cost, Bridge Performance Goals, Bridge Performance 
Plan, and Systematic Process.
    Commenters from several State DOT's, the American Association of 
State Highway and Transportation Officials (AASHTO), NACE, and several 
County Highway Agencies suggested

[[Page 18343]]

expanding the list of eligible activities to include the following: 
Painting programs and preventative maintenance for off-system 
structures, scour countermeasures on all bridges, safety improvements, 
additional sets of load posting signs, activities related to load 
rating and analysis, activities for development and implementation of 
bridge management systems, and specific preventative maintenance 
activities. Ionia County, Michigan, suggested the removal of historical 
inventory activities from eligibility. The Wyoming DOT, NACE, Ionia 
County and Alcona County suggested the removal or clarification of 
calcium magnesium acetate and other deicing chemicals from eligibility.
    Many State DOTs recommended that activities be made applicable for 
all structures irrespective of eligibility. The California and Iowa 
DOTs also suggested clarifying and specifically restricting HBP funds 
for structures carrying automobile traffic. The Virginia DOT and AASHTO 
suggested applicability of the funds for safety improvements 
irrespective of bridge eligibility. The Wyoming and Illinois DOT's, and 
NACE suggested applicability of funds for load posting signs 
irrespective of eligibility criteria. The AASHTO and the Kansas DOT 
recommended that historic bridge activities should be eligible 
regardless of bridge eligibility status.
    County agencies and trade associations expressed concerns that the 
additional flexibility added through the alternate program favored 
State agencies at the expense of local agency bridge owners. Concerns 
focused on whether the alternate program would divert funds from 
localities. The NACE and IACE urged that the proposed regulation be 
amended to ensure that the alternate program be applicable for State 
and local agencies independently and that additional flexibility be 
given to localities independent of the policies of State bridge owning 
agencies. The AASHTO, Kansas DOT, and Delaware County, New York also 
suggested addressing issues that are not currently part of the 
regulation, including the ten-year rule \1\ and the sufficiency rating 
formula.\2\ The California DOT, Wyoming DOT and AASHTO also suggested 
removing FHWA approval of bridge management systems and systematic 
processes, requirements for conformance of preventative maintenance 
with design standards, requirements of funds to be used on Federal-aid 
structures, modification of the unit cost criteria, and sufficiency 
rating eligibility assessment.
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    \1\ The FHWA ``10-year rule'' policy prevents a bridge from 
remaining eligible for HBRRP funding for a period of 10 years after 
construction or major reconstruction has taken place.
    \2\ The sufficiency rating is a method of evaluating highway 
bridge data considering structural condition, functionality and 
essentiality for public use to obtain a numeric value which is 
indicative of bridge sufficiency to remain in service.
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    The Advocates for Highway and Automotive Safety (AHAS) expressed 
concern as to whether the alternate program proposed violated the 
provisions of 23 U.S.C. 144, which it states ``was established to 
ensure that funds are dedicated to improving the nation's aging bridge 
infrastructure * * * [limiting] the use of funds for the replacement or 
rehabilitation of bridges.'' The AHAS argued that FHWA does not have 
the legal authority to approve the expenditure of HBRRP funds for 
activities involving routine maintenance and repair, deck repaving, 
safety improvements and preventative maintenance activities determined 
using a BMS. The authority for preventive maintenance activities is set 
forth in 23 U.S.C.Sec.  116(d). Preventive maintenance activities shall 
be eligible for Federal assistance under title 23 if the State 
demonstrates that the activity is a cost-effective means of extending 
the useful life of a Federal aid highway. The agency has interpreted 
that the authority of Sec.  116(d) extends to all formula funding 
programs, including the HBRRP program to the extent that the activity 
funded extends the useful life of a Federal aid highway, including 
bridges, on the Federal-aid system. The alternate program applied 
preventive maintenance to both Federal-aid bridges and non Federal-aid 
bridges. The legal authority of 23 U.S.C. 116(d) does not apply to the 
off-system structures and the proposed rulemaking contravened current 
provision of law. If pursued, the alternate program would have to be 
constrained to Federal-aid bridges only, which constitutes roughly half 
of the bridges in the national inventory.
    The FHWA has evaluated AHAS's concerns. The authority for 
preventive maintenance is clearly established in 23 U.S.C. 116(d) for 
highways (which by definition includes bridges) on the Federal-aid 
system. Permitting the application of the alternate program for these 
bridges does not violate the legal authority of the FHWA. The NPRM, 
however, proposed to apply the provisions of the alternate program to 
both the Federal-aid and non Federal-aid system.

Determination

    The NPRM proposed to clarify ambiguous language, incorporate long-
standing FHWA policies and, through the alternate program, include 
flexibility provided to the States through the Intermodal Surface 
Transportation Efficiency Act (ISTEA) and the Transportation Equity Act 
for the 21st Century (TEA-21).
    While the FHWA is aware of the benefits that would result from the 
alternate program proposed in the NPRM, there is no quantitative 
information to validate this assumption. With a proven record, benefits 
can be clearly demonstrated. Therefore, further evaluation of the 
issues raised by the NPRM comments, along with the collection of 
quantitative information, is warranted.

Conclusion

    For the reasons stated above, the FHWA withdraws the NPRM and 
closes the docket for this rulemaking. The FHWA intends to consider the 
establishment of a special experimental program to document the 
benefits of the alternative program. The program will likely evaluate a 
small sample of States participating on a voluntary, experimental basis 
in order to gather data necessary to determine the success and need for 
innovative bridge management solutions, such as the alternate bridge 
program. The FHWA plans to initiate a separate rulemaking to include 
language that would eliminate ambiguities and incorporate long-standing 
policies after the reauthorization of the surface transportation 
program.

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

    Issued on: March 31, 2005.
Mary E. Peters,
Federal Highway Administrator.
[FR Doc. 05-7210 Filed 4-8-05; 8:45 am]
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