[Federal Register Volume 79, Number 91 (Monday, May 12, 2014)]
[Notices]
[Pages 27032-27040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-10800]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2013-0021]


National Bridge Inspection Standards Review Process; Notice

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice.

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SUMMARY: This Notice finalizes guidance that describes the FHWA 
internal procedures for review of State compliance with the National 
Bridge Inspection Standards. It also describes how the FHWA will 
implement the related statutory penalties against noncompliant States. 
The FHWA proposed this guidance in a Notice on June 7, 2013. Here, the 
FHWA updates and finalizes the guidance and responds to the 12 
commenters.

[[Page 27033]]


FOR FURTHER INFORMATION CONTACT: For questions about the program 
discussed herein, contact, Thomas D. Everett, Principal Bridge 
Engineer, FHWA Office of Bridges and Structures, (202) 366-4675 or via 
email at [email protected]. For legal questions, please contact 
Robert Black, Office of the Chief Counsel, (202) 366-1359, or via email 
at [email protected]. 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

    This notice, the notice requesting comment, related documents, and 
all comments received may be viewed online through the Federal 
eRulemaking portal at: http://www.regulations.gov. The Web site is 
available 24 hours each day, 365 days each year. Please follow the 
instructions. 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 from 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.

Purpose of This Notice

    The FHWA is providing responses to comments received on the Notice 
published at 78 FR 34424 on June 7, 2013, and publishing the internal 
administrative processes FHWA uses to review State compliance with the 
National Bridge Inspection Standards (NBIS) and implement statutory 
penalties for noncompliance.

Background

    For more than 30 years, the FHWA has annually assessed each State's 
bridge inspection program to evaluate compliance with the NBIS as 
codified at 23 CFR 650 Subpart C. Historically, the depth and scope of 
the reviews varied based upon the FHWA's knowledge of the State's 
inspection program and the experience of the FHWA staff. In 2009, the 
Office of Inspector General (OIG) issued an audit report, National 
Bridge Inspection Program: Assessment of FHWA's Implementation of Data-
Driven, Risk-Based Oversight,\1\ summarizing its review of the FHWA 
oversight of the National Bridge Inspection Program. One of the five 
OIG recommendations from this audit was for the FHWA to develop and 
implement minimum requirements for data-driven, risk-based, bridge 
oversight during bridge engineers' annual NBIS compliance reviews. In 
Senate Report 110-418,\2\ strong support was given to the OIG 
recommendations and the need for prompt action by FHWA. In addition, 
the U.S. House of Representatives Conference Report 111-366,\3\ 
directed FHWA to improve its oversight of bridge safety and conditions.
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    \1\ Report MH-2009-013; http://www.oig.dot.gov/sites/dot/files/pdfdocs/BRIDGE_I_REPORT_FINAL.pdf.
    \2\ Senate Report 110-418; http://www.gpo.gov/fdsys/pkg/CRPT-110srpt418/pdf/CRPT-110srpt418.pdf.
    \3\ House of Representatives Conference Report 111-366; http://www.gpo.gov/fdsys/pkg/CRPT-111hrpt366/pdf/CRPT-111hrpt366.pdf.
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    In response to the OIG recommendations and congressional direction, 
FHWA developed a new systematic, data-driven, risk-based oversight 
process for monitoring State compliance with the NBIS. The process 
utilizes 23 metrics, or measures, to define (1) the levels of 
compliance, (2) items from the NBIS to be measured, and (3) how those 
measurements would affect the levels of compliance. Each metric can be 
traced directly to wording in 23 CFR Part 650, Subpart C. The 23 
metrics were developed over a 2-year period by a committee which 
consisted of FHWA Division, Resource Center, and Headquarters bridge 
engineers. Refinements were made to the metrics based upon feedback 
received during implementation. The finalized 23 metrics described in 
this Notice are contained in the document entitled Metrics for the 
Oversight of the National Bridge Inspection Program (April 1, 2013) 
which is available on the docket (docket number FHWA-2013-0021) through 
the Federal eRulemaking portal at: http://www.regulations.gov.
    In 2010, the FHWA initiated a pilot program using the new process 
in nine States. The FHWA made adjustments to the process following the 
pilot in preparation for nationwide implementation in February 2011.
    After the nationwide implementation, a joint FHWA/American 
Association of State Highway and Transportation Officials (AASHTO) task 
force was established in the fall of 2011 to identify possible 
modifications and opportunities to improve the assessment process. One 
of the first steps the task force completed was gathering input and 
feedback on the assessment process from all States and interested 
Federal agencies. The FHWA collected information from internal staff, 
and AASHTO gathered information from the States. The information 
collected was used to help identify and prioritize process 
improvements. The joint task force efforts resulted in FHWA 
implementing several improvements to the oversight process in April 
2012.
    On July 6, 2012, President Obama signed into law the Moving Ahead 
for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141). 
Section 1111 of MAP-21 amended 23 U.S.C. 144(h)(3)(A)(i) to include 
provisions for the Secretary to establish, in consultation with the 
States, Federal agencies, and interested and knowledgeable private 
organizations and individuals, procedures to conduct reviews of State 
compliance with the NBIS. The MAP-21 also modified 23 U.S.C. 144(h)(5) 
to establish a penalty for States in noncompliance with the NBIS.
    The FHWA developed and implemented the current process to review a 
State's bridge inspection program for compliance with the NBIS prior to 
the requirements of MAP-21, Section 1111. The development of the review 
process included consultation with stakeholders through the pilot 
project, the joint FHWA/AASHTO task force, as well as with individual 
States and Federal agencies during the initial implementation of the 
process in 2011. The FHWA will continue to use the current risk-based, 
data-driven review process to evaluate State compliance with the NBIS 
as required by 23 U.S.C. 144(h)(4)(A). The FHWA will implement the 
specific penalty provisions in 23 U.S.C. 144(h)(5) using the process 
described below.
    On June 7, 2013, at 78 FR 34424, the FHWA published a Notice 
requesting comment on the process the FHWA uses to conduct reviews of 
State compliance with the NBIS and the associated penalty process for 
findings of noncompliance. The NBIS Review Process Notice outlined the 
data-driven, risk-based process used by each FHWA Division to review a 
State's compliance with the NBIS. The yearly review of a State DOT's 
highway bridge inspection program focuses on 23 metrics, or specific 
measures required by the current NBIS regulations at 23 CFR 650 Subpart 
C. The FHWA Division conducting the review looks at each of the 23 
metrics and assigns them one of four compliance level ratings: 1. 
Compliant (meets criteria); 2. Substantially compliant (meets most 
criteria except for minor deficiencies); 3. Noncompliant (does not meet 
one or more of the substantial compliance criteria); or 4. 
Conditionally compliant (State is adhering to a FHWA approved plan of 
corrective action for the metric).
    If a State highway bridge inspection program receives a 
``noncompliant rating'' for any metric, the State must address the 
finding in 45 days or

[[Page 27034]]

prepare a Plan of Corrective Action (PCA) to remedy the noncompliance. 
The PCA describes the process and timelines to correct the 
noncompliance. The FHWA must approve the PCA. For deficiencies 
identified in a substantial compliance determination for a metric, the 
State prepares an Improvement Plan (IP) that documents the agreement 
with FHWA for corrective action to correct the deficiencies. The IP is 
usually limited to 12 months or less. Through these measures, the FHWA 
is assured that the State DOT is addressing parts of its highway bridge 
inspection program that do not comply with the NBIS regulations at 23 
CFR Part 650 Subpart C.
    To simplify the reporting of the results of the review, especially 
for the benefit of parties unfamiliar with the process, FHWA assigns a 
performance rating for each of the 23 metrics of satisfactory, actively 
improving, or unsatisfactory. A satisfactory rating means that the 
State is adhering to the NBIS regulations with perhaps a few minor, 
isolated deficiencies that do not affect the overall effectiveness of 
the program. A rating of actively improving means that there is a PCA 
in place to improve noncompliant metrics. The FHWA will rate the State 
bridge inspection program as unsatisfactory if metrics rated as 
noncompliant do not have a PCA or a State is not actively complying 
with an existing PCA.
    The FHWA received 15 sets of comments in response to the Notice 
published June 7, 2013, from 12 different commenters representing 8 
State Transportation Departments, 1 Federal agency, 1 private 
engineering firm, 1 professional organization, 1 private citizen and 
AASHTO.

Response to Comments

General

    The FHWA would like to clarify that the internal administrative 
process described in this Notice is presently followed by FHWA in its 
review of compliance with the NBIS regulation. The process described in 
this Notice does not change the current statutory or regulatory 
requirements of the NBIS.
    In accordance with the requirements of MAP-21, FHWA will be 
updating the NBIS regulation. Comments concerning proposed changes to 
the NBIS received in this Notice will be considered in the update to 
the NBIS.
    1. Several States and AASHTO commented that significant effort and 
resources have been directed towards the review process, but question 
if it is improving overall bridge safety.
    The National Bridge Inspection Program ensures the safety of the 
Nation's bridges. The FHWA's review process merely verifies whether 
States and Federal agencies are meeting the minimum requirements of the 
NBIS, which were established to ensure overall bridge safety.
    Unfortunately, FHWA has discovered several issues regarding 
compliance with the NBIS. Examples include the following:
     Critical inspection findings that were not being 
addressed;
     Overdue inspections;
     Scour critical bridges without plans of action (POA) as 
identified in 23 CFR 650.313(e)(3);
     Scour critical bridges for which the POA was not properly 
implemented;
     Unqualified team leaders performing inspections;
     Bridges not being load rated for State legal loads and/or 
routine permits; and
     Inadequate or nonexistent inspection procedures.
    The FHWA recognizes that the review process requires significant 
effort from FHWA, States, and Federal agencies. As compliance with the 
NBIS rises to the level expected by the public and Congress, this 
effort should decrease. Presently, the burden placed on FHWA, a State, 
or a Federal agency as a result of the review process is commensurate 
with the level of compliance with the regulation.
    2. The Bureau of Land Management suggested a separate evaluation 
process for Federal bridge owners, with FHWA in a supporting role.
    The NBIS apply equally to all States and Federal agencies. Our goal 
is national consistency; therefore, it is necessary and appropriate 
that all agencies are held to the same standards.
    3. The Iowa DOT suggested that the FHWA should review State and 
local agencies separately.
    The Federal-aid highway program is State-administered and federally 
assisted. The fundamental relationship under the law is between FHWA 
and the State. States may delegate functions defined in the NBIS; 
however, the responsibility for NBIS compliance remains with the State.
    The FHWA oversight process reviews both State and local agencies, 
but the resolution of review findings is between FHWA and the State.
    4. Iowa and South Dakota DOTs commented that if a State cannot take 
action against a bridge owner, action should not be taken against a 
State for that bridge. Iowa went on to comment that FHWA should take 
action directly against the bridge owner.
    The Federal-aid highway program is State-administered and federally 
assisted. The fundamental relationship under the law is between FHWA 
and the State. States may delegate functions defined in the NBIS; 
however, the responsibility for NBIS compliance remains with the State.
    5. The South Dakota DOT commented that the metrics requirements for 
bridge inspections described in the Notice are likely to result in 
additional resources being dedicated to bridge inspection, decreasing 
funds available for structure preservation and replacement needs. The 
South Dakota DOT stated that ``the additional requirements have 
resulted in an approximately 44% increase in bridge inspection costs 
for local governments in South Dakota.''
    The review process proposed did not establish any new regulatory 
requirements. The 23 metrics are requirements of the NBIS that have 
been in place since 2004. The metrics are FHWA's means of objectively 
determining how well a State DOT has complied with the NBIS. The costs 
of the inspection program should not increase for States that were in 
compliance with the NBIS requirements prior to implementation of the 
review process.
    6. The Virginia DOT commented that the overall NBIS review process 
is acceptable, but recommended that FHWA ``periodically update the NBIS 
review process based on lessons learned from the review of different 
State programs and as issues or conflicts arise.''
    The FHWA agrees with the comment. The review process was updated 
for the 2013 and 2014 review cycles based on lessons learned.
    7. The Idaho DOT raised concerns about stability of the review 
process because the metrics have changed since the 2011 implementation.
    The FHWA implemented the changes for the 2013 and 2014 review 
cycles to address the comments received from the joint FHWA/AASHTO task 
force and lessons learned. The FHWA anticipates the metric review 
process established in this Notice will remain stable.
    8. The Idaho, North Dakota, and Missouri DOTs, and AASHTO commented 
that the consistency in FHWA Divisions' performance of the review 
process can be improved.
    The FHWA considers consistency in the review process a priority. To 
improve consistency in the review process, FHWA has and will continue 
to clearly document processes; train staff; provide feedback to field 
offices; hold frequent teleconferences with field staff; utilize 
standardized reports, forms, and

[[Page 27035]]

checklists; conduct annual quality assurance reviews; and provide 
targeted technical assistance. Quality assurance reviews indicate that 
there has been marked improvement in the consistency of the FHWA's 
assessment of State compliance with the NBIS since the process was 
introduced in 2011.
    9. The North Dakota and Iowa DOTs commented that the review process 
leaves little room for engineering judgment.
    The review process is completely aligned with the NBIS, which 
establish minimum national standards for bridge inspection programs. 
Engineering judgment is appropriately applied by bridge owners in 
deciding when it is warranted to exceed the NBIS minimum standards.
    10. The Professional Engineers in California Government (PECG) 
commented that they firmly believe that the inspection function, 
especially on critically important infrastructure such as bridges, is 
inherently governmental in nature and should be performed by public 
servants. The PECG recommended that FHWA require States to use their 
own professional staff to perform bridge inspection functions except in 
very narrowly defined circumstances.
    The FHWA does not believe, under the authority of 23 U.S.C. 144, 
that it can prohibit States from using qualified private consultants to 
perform inspection duties. The FHWA can set the inspection standards 
that States must meet in inspecting bridges, but it cannot, without 
statutory direction, dictate to the States who they must hire to 
perform inspections.
    11. The PECG commented that the bridge inspection organization 
metric should disallow the State from further delegating bridge 
inspection responsibilities to local governments.
    Many local governments own and maintain the highway bridges within 
their territorial limits. The State is responsible for ensuring that 
these bridges are inspected in accordance with all aspects of the NBIS. 
If a State DOT does not believe the local governmental entity is 
complying with the NBIS regulations, then the State can address the 
problem in many different ways. Each State has its own legal 
relationship between it and local governmental entities.

Metrics Section Comments

    12. The North Dakota and Michigan DOTs commented that the terms 
used to define the four compliance levels for each metric may lead to 
confusion for parties not familiar with the process. Instead they 
recommend using the performance level terms.
    The FHWA agrees that the four compliance levels could be 
misinterpreted by parties unfamiliar with the process. The FHWA 
proposed in the Notice, and has used the terms ``satisfactory,'' 
``actively improving,'' and ``unsatisfactory'' for clarity. The plain 
language avoids confusion in expressing to parties unfamiliar with the 
process if a State is complying with the metrics. Satisfactory equates 
to ``compliant'' and ``substantially compliant''; Actively Improving 
equates to ``Conditionally Compliant''; and Unsatisfactory equates to 
``Noncompliant.''
    13. The Idaho and Iowa DOTs commented that the thresholds for 
compliance are not attainable.
    The NBIS are required by Federal law and are defined in regulation. 
The compliance thresholds identified in the 23 metrics are provisions 
of the NBIS. The FHWA can change compliance requirements only through a 
rulemaking process, which is not the intent of this Notice. In 
accordance with MAP-21, FHWA will update the NBIS. At that time, 
consideration will be given to recommendations for changes to the 
regulation as part of the rulemaking process.
    14. The Iowa DOT commented that many of the issues found are 
National Bridge Inventory (NBI) data entry errors and the findings of 
the review should be based on findings of inspection problems.
    The NBI is a very important part of the NBIS. Quality data within 
the NBI is vital to ensuring that bridge safety is being appropriately 
monitored, reported, and maintained. It is also necessary to maintain 
quality data in order to comply with the Office of Management and 
Budget guidelines established under Section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554 app. C; 114 Stat. 2763, 2763A-154), commonly known as the 
Information Quality Act. It is FHWA's position that NBI data submitted 
by the State should be correct. If it is determined that the source of 
a compliance issue is data entry errors, in most cases, FHWA can make a 
final determination of ``compliant'' once the data issues have been 
corrected.
    15. The North Dakota DOT commented that the review process 
emphasizes the metrics, ``rather than increasing the effectiveness of 
the program or determining how the bridge inspection program can be 
improved.''
    The annual review is conducted to verify compliance with the 
requirements of the NBIS. Compliance with all aspects of the NBIS would 
reflect a highly effective bridge inspection program. The findings of 
the review are used to address areas which are not in compliance.
    16. The North Dakota DOT questioned if all the metrics have equal 
value and weight.
    Yes. The joint FHWA/AASHTO task force discussed this point and 
agreed that each part of the NBIS is important and should carry equal 
value and weight.
    17. The Michigan DOT commented that it is not clear when the 
Minimum Assessment Level will be performed.
    As identified in the Review Cycle and Schedule section of the 
Notice, a minimum level review will be performed if an intermediate or 
in-depth level review is not performed that year. Each metric will have 
an intermediate level review performed at least once over a 5-year 
cycle.
    18. The Michigan DOT raised the concern that FHWA Division Bridge 
staff changes will adversely affect FHWA's ability to perform the 
Minimum Assessment Level.
    The FHWA has internal guidance which addresses review requirements 
when there is a change in staff. This guidance takes into consideration 
the risk associated with the inspection program and the new FHWA 
Division Bridge staff knowledge of the program.
    19. The Michigan DOT is also concerned that FHWA may not have 
adequate staff to implement this oversight process in a timely manner.
    The FHWA has made this process a priority and has hired additional 
staff to help implement the process. The FHWA notes that the review 
process is now in its third year.
    20. The Iowa and Michigan DOTs questioned how FHWA will assess 
element level data for National Highway System (NHS) in the metrics.
    The current FHWA review process does not assess element level 
inspection data. Once FHWA begins collecting element level data for 
bridges on the NHS, the assessment process will be revisited to 
determine the criteria to be used to ensure that quality element data 
is being reported. We anticipate that the assessment will be very 
similar to that currently used in the assessment of other data 
currently reported in the NBI.
    21. The South Dakota DOT commented that Metric 1 states under 
Compliance Levels that a State will be in noncompliance with this 
metric if it is out of compliance with any of the other 22 metrics.
    South Dakota's interpretation of Metric 1 is incorrect. The 
commentary

[[Page 27036]]

for Metric 1 states that ``[i]f other metrics are noncompliant, a 
careful evaluation should be done to determine whether or not those 
noncompliance issues stem from the organizational structure itself. If 
so, then a finding of substantial compliance or noncompliance would be 
appropriate.''
    22. The Michigan DOT commented that FHWA should consider combining 
the Metrics 2-5 which assess qualifications into to one metric--
Qualifications of Personnel.
    These metrics are separate to maintain clear and consistent 
alignment with the NBIS regulation. Each position in a State DOT's 
bridge inspection organization is important, and Metrics 2-5 are 
measuring differing qualifications.
    23. A commenter from Aason Engineering did not agree with what he 
interpreted to be a ``new bridge inspection frequency criteria stating 
that a bridge must be inspected no more than 30 days past the required 
frequency time.'' He claimed that ``[i]n years past, [he] had the 
flexibility to inspect bridges at any time during May through 
October.''
    This comment validates one of the reasons the metric-based review 
process was implemented. The inspection interval criteria defined in 
the NBIS have not changed. The 2004 NBIS Final Rule clarified that 
there is not a 30-day grace period for the inspection interval. Prior 
to FHWA's implementation of this review process, this was not uniformly 
understood or applied. In general, the concerns that commenters made 
for inspection schedule flexibility will be considered in the NBIS 
regulation update required by MAP-21.
    24. The Virginia DOT commented that using the National Bridge 
Inventory (NBI) condition code for a substructure rating of poor or 
worse to place the bridges in the high risk requirement for underwater 
inspections is overly broad. The high-risk designation should be based 
on the condition of the substructure below water.
    If a bridge substructure has a low condition rating, the FHWA 
cannot determine from the NBI data if the defect is above or below 
water. Therefore, to err on the side of safety, these bridges will be 
included in the higher risk category.
    25. The Michigan DOT commented that Metric 12 should not require an 
additional check of team leader qualifications. Since the State 
provides a list of team leaders, Metric 12 should be a brief check to 
verify that a team leader was performing the inspection.
    The FHWA agrees with this comment. It is the intent that Metric 12 
only verify that a team leader is on site. Some States do not maintain 
a list of active team leaders, in which case it must be confirmed that 
the person responsible for the inspection is a qualified team leader.
    26. The South Dakota DOT recommended deleting the requirement to 
load rate existing box culverts and pipes.
    The NBIS require that all bridges, including bridge-length box 
culverts and pipes, be load rated in accordance with the AASHTO Manual 
for Bridge Evaluation. A change to Metric 13--Load Rating, does not 
change the underlying regulation requirement or the AASHTO Manual for 
Bridge Evaluation. The FHWA encourages South Dakota DOT to address such 
technical recommendations to the AASHTO Subcommittee on Bridges and 
Structures. If the Subcommittee changed this point in the Manual, the 
FHWA may consider changing the requirement in the NBIS.
    27. The Iowa DOT commented on Metric 15--Bridge Files, that when 
the State has delegated inspection responsibility to local agencies, 
the State's only option to address deficiencies is to notify local 
agencies of documentation requirements. The Iowa DOT recommended that 
notification constitute State compliance because it believes that 
``[t]here is no reasonable plan of action that can be taken to 
guarantee all bridge files will have all the significant documents.''
    The FHWA disagrees that merely informing the owner of the 
documentation requirements adequately addresses noncompliance issues. 
Additional steps are needed to verify that corrective actions taken 
have effectively addressed the noncompliance issues. In the example 
provided, it is not the FHWA's expectation that the State would check 
every bridge file. There are several possible solutions to this, one of 
which could be statistical sampling.
    28. The North Dakota DOT commented that ``[t]here are instances 
where grading performance and determining compliance is based on past 
performance and situations that existed prior to the metrics being 
developed. For many older county bridges, the information required is 
not, and will not be available.''
    The metrics are based upon the requirements of the NBIS. The NBIS 
have existed for many years and have remained essentially unchanged 
since 2004. The metrics did not create new requirements nor did they 
modify the existing NBIS. It is understood that there may be situations 
where historical information may not be available; this should only 
impact Metric 15--Bridge Files. This issue is discussed in the 
commentary for Metric 15.
    29. The Iowa DOT commented that Metric 17--Inspection Procedures, 
Underwater, should differentiate ``between bridges that require divers 
and ones that don't. For bridges that require divers, the inspection 
should be reviewed to make sure the divers had inspection training, the 
inspection was performed within the frequency required, and the final 
report contains adequate information.''
    The NBIS definition of ``underwater inspection'' includes 
clarification that an underwater inspection generally requires diving, 
and cannot be accomplished visually by wading or probing. Metric 17 
assesses only those bridges which require an underwater inspection 
under that definition. Inspector qualifications and inspection 
reporting are reviewed in other metrics.
    30. The Iowa DOT commented that the tolerances for Metric 22 should 
be made available to the States.
    The FHWA agrees with this comment. The field review form used to 
assess Metric 22 provides the associated tolerance for each item. This 
form has been added to the Docket and is available from FHWA Division 
offices.
    31. The Iowa DOT requested the specific data checks FHWA uses for 
the annual NBI submittal.
    The FHWA agrees with the comment and made data checks available at 
http://www.fhwa.dot.gov/bridge/nbi.cfm. The FHWA strongly recommends 
that States check their data by running the data check programs made 
available to them at the above mentioned Web site or identified in the 
annual call for NBI data.
    32. The North Dakota DOT commented that the `` `one size fits all' 
philosophy is not appropriate. A county bridge in North Dakota with 
less than 200 ADT is treated the same as a bridge located in another 
part of the country with over 50,000 ADT.''
    The FHWA disagrees. When it comes to safety of the traveling 
public, the timely and proper inspection of all bridges is important.
    33. The North Dakota DOT commented that ``[r]isk does not seem to 
be factored into the importance of each metric. The inspection 
frequency for an 80 year old bridge is the same as a bridge that was 
just constructed.''
    The NBIS establish the minimum bridge inspection standards for the 
Nation and the thresholds are identified in the regulations, as 
reflected in the 23 metrics. This comment will be considered when FHWA, 
in accordance

[[Page 27037]]

with MAP-21, updates the NBIS to consider a risk-based approach to 
determine the frequency of bridge inspections.
    34. The Michigan DOT commented that ``[f]or duration and completion 
dates of [Plans of Corrective Action (PCAs)], the code is silent on 
implementation timeliness. The Michigan DOT believes the FHWA should 
include language and/or guidance that the States are to work with their 
local FHWA Division on implementing the appropriate timeframes on a 
case by case basis.''
    As stated in the Findings of Noncompliance section of the Notice, 
the PCA must contain the duration and completion dates for each action 
and be approved by FHWA. As each issue of noncompliance is unique, it 
is FHWA's expectation that the Division will coordinate with the State 
on the review and approval of those dates. For national consistency, a 
Bridge Safety Engineer from FHWA Headquarters office will review each 
PCA.
    35. California and Iowa suggested removing the requirement for a 
written reply for a finding of substantial compliance.
    The FHWA disagrees with this suggestion. If a State is not in full 
compliance with the regulation, there should be documentation of a plan 
to achieve full compliance.
    36. California suggested that FHWA submit a signed, written report 
to the State for findings of noncompliance or conditional compliance by 
December 31.
    The FHWA agrees that there should be a signed document for metrics 
determined to be noncompliant or in conditional compliance. The process 
has been changed to incorporate this comment.

Penalty Provision Comments

    37. The Missouri DOT suggested that the August 1 date triggering 
noncompliance penalties and the August 1 date for submitting an 
analysis of actions needed to correct the noncompliance should not be 
the same date.
    States are notified by December 31 of a noncompliance issue and 
have 45 days to address areas of noncompliance or develop a PCA as 
defined in 23 U.S.C. 144(h)(4)(B). The penalty provision applies when a 
State remains noncompliant from the December 31 notification until 
August 1. During this 7-month period FHWA will continue to work with 
the State to resolve the issue. The State will be aware well in advance 
of August 1 that an analysis is needed. In addition, by having the 
analysis completed by August 1, there will be time to dedicate 
apportioned funds as of October 1, as required by the statute.
    38. The Iowa DOT commented on the penalty for noncompliance. In its 
view, ``[s]hifting funds away from needed bridge repair, 
rehabilitation, or replacement projects seems to be counter intuitive 
to providing safe bridges for the traveling public. A Non-Compliance 
issue may have less impact on the safety of the traveling public than 
cancelled or delayed projects.''
    The FHWA recognizes the challenges associated with improving bridge 
conditions through repair, rehabilitation, and replacement while also 
maintaining the overall safety for the traveling public. Priority must 
be given to keeping existing bridges in safe operational condition, 
which is assured through regular inspections in accordance with the 
NBIS. When noncompliance occurs, the decision as to the source of funds 
to be used to address the issue of noncompliance belongs to the State. 
As with any shifting of funding for unforeseen issues, States should 
have a process for assessing and amending the State Transportation 
Improvement Program and, if needed, the appropriate Transportation 
Improvement Plan so that critical safety needs do not go unaddressed.
    39. The Iowa DOT commented that the ``FHWA would be better served 
if they provided assistance to a State or Local agency that has a 
compliance issue, rather than imposing penalties. Providing assistance 
to correct problems would be looked upon more favorably than simply 
imposing penalties.''
    The FHWA has a longstanding history of working with our State 
partners to resolve issues of noncompliance. The penalty provision 
established by Congress only applies when a State remains noncompliant 
from the December 31 notification until August 1, without developing an 
acceptable PCA. The FHWA will work aggressively with any State that 
faces noncompliance in order to exhaust all options for avoiding the 
penalty.
    40. The Iowa DOT commented that the analysis plan identified in the 
penalty for noncompliance should be approved by the FHWA Division 
office.
    The FHWA agrees with this comment. Division offices will be 
responsible for approving the analysis. This responsibility has been 
clarified in the description of the process within the Notice.
    41. The Iowa DOT questioned if the funding is split 80 percent 
Federal/20 percent State or 100 percent Federal for the noncompliance 
penalty.
    Under 23 U.S.C. 144(h)(5)(A), the FHWA will require noncompliant 
States to dedicate their apportioned National Highway Performance 
Program (NHPP) and Surface Transportation Program (STP) funds to 
correct the noncompliance. The Federal share payable on account of any 
project or activity carried out under the NHPP and STP is specified 
under 23 U.S.C. 120. In general, the Federal share payable on account 
of any project on the Interstate System is 90 percent and for other 
projects is 80 percent. In the case of a State that does not develop 
and implement a State asset management plan consistent with 23 U.S.C. 
119(e), the Federal share payable on account of any project carried out 
under the NHPP is 65 percent.
    42. The California DOT and a private citizen questioned if there is 
a process for States to appeal the compliance determination.
    Appeals of compliance determinations should be directed to the 
local FHWA Division Office.

Review Process Overview

    Each FHWA Division Office annually assesses State compliance with 
23 individual metrics that are directly aligned with the existing NBIS 
regulation. The risk-based assessment process followed during this 
annual assessment utilizes objective data and employs statistical 
sampling of data and inspection records. The FHWA Division Office uses 
the established criteria contained in the Metrics for the Oversight of 
the National Bridge Inspection Program for assessing compliance for 
each metric. The State is notified by FHWA of any metric which has a 
finding of noncompliance no later than December 31. In accordance with 
the requirements of 23 U.S.C. 144(h)(4)(B) as established by MAP-21, 
within 45 days of the FHWA notification of noncompliance, the State 
will correct the noncompliance or submit to the FHWA a PCA which 
outlines how noncompliant findings will be corrected. The FHWA will 
have 45 days to review, comment, and, if appropriate, accept the PCA. 
The FHWA will make final compliance determinations for each of the 23 
metrics no later than March 31. If a State remains in noncompliance for 
any of the 23 metrics on August 1 following a final determination of 
noncompliance, FHWA will implement a penalty provision which requires 
the State to dedicate funds to correct the noncompliance, in accordance 
with 23 U.S.C. 144(h)(5). This annual process allows FHWA to assess 
whether each State's bridge inspection program

[[Page 27038]]

complies with the NBIS and to implement any required penalties for 
metrics which remain in noncompliance in a nationally consistent 
manner.

Metrics

    The metrics, or specific measures required by the current NBIS 
regulations, are examined to assess each State's compliance with the 
NBIS. The following is a list of the 23 metrics which are existing 
requirements of the NBIS and have been established to provide an 
assessment of compliance with the NBIS. The complete metrics document 
entitled Metrics for the Oversight of the National Bridge Inspection 
Program (April 1, 2013) is available on the docket (docket number FHWA-
2013-0021) through the Federal eRulemaking portal at: http://www.regulations.gov. Each metric is equally important; noncompliance by 
the State DOT with any metric can result in FHWA assessing a penalty.

Metric 1: Bridge inspection organization: 23 CFR 650.307
Metric 2: Qualifications of personnel--Program manager: 23 CFR 
650.309(a) & 650.313(g)
Metric 3: Qualifications of personnel--Team leader(s): 23 CFR 
650.309(a) & 650.313(g)
Metric 4: Qualifications of personnel--Load rating engineer: 
23 CFR 650.309(c)
Metric 5: Qualifications of personnel--Underwater bridge 
inspection diver: 23 CFR 650.309(d)
Metric 6: Routine inspection frequency--Lower risk bridges: 23 
CFR 650.311(a)
Metric 7: Routine inspection frequency--Higher risk bridges: 
23 CFR 650.311(a)
Metric 8: Underwater inspection frequency--Lower risk bridges: 
23 CFR 650.311(b)
Metric 9: Underwater inspection frequency--Higher risk 
bridges: 23 CFR 650.311(b)
Metric 10: Inspection frequency--Fracture critical member: 23 
CFR 650.311(c)
Metric 11: Inspection frequency--Frequency criteria: 23 CFR 
650.311(a)(2), (b)(2), (c)(2), (d)
Metric 12: Inspection procedures--Quality inspections: 23 CFR 
650.313(a) & (b)
Metric 13: Inspection procedures--Load rating: 23 CFR 
650.313(c)
Metric 14: Inspection procedures--Post or restrict: 23 CFR 
650.313(c)
Metric 15: Inspection procedures--Bridge files: 23 CFR 
650.313(d)
Metric 16: Inspection procedures--Fracture critical members: 
23 CFR 650.313(e)(1)
Metric 17: Inspection procedures--Underwater: 23 CFR 
650.313(e) & (e)(1)
Metric 18: Inspection procedures--Scour critical bridges: 23 
CFR 650.313(e)
Metric 19: Inspection procedures--Complex bridges: 23 CFR 
650.313(f)
Metric 20: Inspection procedures--Quality Control/Quality 
Assessment: 23 CFR 650.313(g)
Metric 21: Inspection procedures--Critical findings: 23 CFR 
650.313(h)
Metric 22: Inventory--Prepare and maintain: 23 CFR 650.315(a)
Metric 23: Inventory--Timely updating of data: 23 CFR 
650.315(a), (b), (c) & (d)

    Each metric consists of four parts: (1) NBIS component to be 
reviewed; (2) evaluation criteria; (3) compliance levels; and (4) 
assessment levels.

(1) NBIS Component To Be Reviewed

    This section of the metric identifies the relevant provisions of 
the NBIS and focuses on a key inspection area for which compliance will 
be assessed.

(2) Evaluation Criteria

    This section of the metric identifies the criteria for evaluation 
of compliance.

(3) Compliance Levels

    Each of the 23 metrics is annually assessed by FHWA and assigned 
one of four compliance levels--compliant, substantially compliant, 
noncompliant, or conditionally compliant--based upon specific 
thresholds or measures for each compliance level for each metric. These 
specific thresholds or measures are contained in the NBIS Oversight 
Program document entitled Metrics for the Oversight of the National 
Bridge Inspection Program (April 1, 2013). The degrees of compliance 
are described as follows:
    Compliant--Adhering to the NBIS regulation.
    Substantially Compliant--Adhering to the NBIS regulation with minor 
deficiencies, as set forth in the Metrics for the Oversight of the 
National Bridge Inspection Program (April 1, 2013). These deficiencies 
do not adversely affect the overall effectiveness of the program and 
are isolated in nature. Documented deficiencies are provided to the 
State with the expectation that they will be corrected within 12 months 
or less, unless the deficiencies are related to issues that would most 
efficiently be corrected during the next inspection. An Improvement 
Plan describing the expected corrective action is required. Metrics 
which are determined to be substantially compliant will not invoke the 
penalty for noncompliance.
    Noncompliant--Not adhering to the NBIS regulation. In general, 
failing to meet one or more of the substantial compliance criteria for 
a metric. Identified deficiencies may adversely affect the overall 
effectiveness of the program. Failure to adhere to an approved PCA is 
also considered noncompliance. Metrics which remain as noncompliant 
will invoke the penalty for noncompliance.
    Conditionally Compliant--Taking corrective action in conformance 
with an FHWA-approved PCA to achieve compliance with the NBIS. 
Deficiencies, if not corrected, may adversely affect the overall 
effectiveness of the program. Metrics which are determined to be 
conditionally compliant will not invoke the penalty for noncompliance.
    The following definitions apply to actions taken to address 
findings of substantial compliance and noncompliance, respectively:
    Improvement Plan (IP)--A written response by the State which 
documents the agreement for corrective actions to address deficiencies 
identified in a substantial compliance determination. The completion 
timeframe for such agreements is limited to 12 months or less, unless 
the deficiencies are related to issues that would most efficiently be 
corrected during the next inspection cycle.
    Plan of Corrective Action (PCA)--A documented actions agreement 
prepared and submitted by the State and approved by FHWA describing the 
process and timelines to correct noncompliant NBIS metrics. The term 
``corrective action plan'' in MAP-21 is interchangeable with PCA. An 
agreed-upon PCA for a noncompliant metric removes the possibility of a 
penalty based upon that metric.
    For each of the 23 metrics, FHWA will assign the following 
performance levels:
    Satisfactory--Adhering to the intent of the NBIS regulation. There 
may be minor deficiencies, but these deficiencies do not adversely 
affect the overall effectiveness of the program and are isolated in 
nature.
    Actively Improving--A PCA is in place to improve the areas 
identified as not meeting the requirements of the NBIS.
    Unsatisfactory--Not adhering to the NBIS. Deficiencies exist that 
may adversely affect the overall effectiveness of the inspection 
program.

(4) Assessment Levels

    The assessment levels represent a key part of the data-driven, 
risk-based

[[Page 27039]]

approach to compliance review that FHWA has implemented. The FHWA will 
conduct the yearly compliance review for each metric at one of three 
assessment levels. Assessment levels define the scope of FHWA's review 
necessary to make a compliance determination for a specific metric. 
There are three assessment levels:
    Minimum Assessment Level--A review based on information from past 
assessments and the FHWA Division Bridge Engineer's knowledge of the 
current practice as it relates to the metric. For some metrics, a 
minimum level assessment is enhanced with interviews and/or data 
review. The minimum assessment can range from a very brief 
consideration of the metric with respect to any changes in the program 
since the last assessment to a more detailed look at summary data from 
bridge inventories, pertinent lists, and a review of historical trends.
    Intermediate Assessment Level--Verifying the minimum level 
assessment through random sampling of inspection records, analysis of 
bridge inventories, site visits, interviews, and documentation. The 
intermediate level assessment involves Tier 1 random sampling using a 
margin of error (MOE) of 15 percent and a level of confidence (LOC) of 
80 percent to review bridge records or as directed in the individual 
metrics. A Tier 2 random sampling, utilizing a MOE of 10 percent and 
LOC of 80 percent, is used when the results of the Tier 1 sample are 
inconclusive.
    In-depth Assessment Level--Supplementing the intermediate 
assessment with larger random sample sizes, more interviews, and 
research of records and documentation, and/or history. The in-depth 
assessment involves a Tier 1 random sampling using an MOE of 15 percent 
and LOC of 90 percent or as directed in the individual metrics. A Tier 
2 random sampling, utilizing an MOE of 10 percent and LOC of 90 
percent, is used when the results of the Tier 1 sample are 
inconclusive.
    Random samples are selected from the population identified for the 
specific metric.
    A copy of the metrics document entitled Metrics for the Oversight 
of the National Bridge Inspection Program (April 1, 2013) is available 
on the docket (docket number FHWA-2013-0021) through the Federal 
eRulemaking portal at: http://www.regulations.gov.

Annual Review Schedule and 5 Year Review Cycle

    In accordance with 23 U.S.C. 144(h)(4), the FHWA will annually 
review State compliance with the NBIS.

Annual Review Schedule

    Each FHWA Division Office will conduct an annual assessment of the 
State's compliance with the NBIS. Key dates are as follows:
    (a) April 1--The FHWA begins annual NBIS assessment.
    (b) By December 31--The FHWA makes a compliance assessment, 
referred to as the ``December 31 Compliance Determination'' for each 
metric and issues a signed report to each State detailing issues of 
noncompliance.
    (c) March 31--Final compliance determination completed for all 
metrics. The final determination is based on the resolution of 
compliance issues or development of an acceptable PCA following the 
December 31 notification.
    The proposed schedule may need to be modified on a case-by-case 
basis when unique and unexpected extenuating circumstances arise. The 
FHWA will address this issue on a case-by-case basis when it arises.

5-Year Review Cycle

    The FHWA will take the following actions as part of the 5-year 
review cycle:
    (a) Assess each of the 23 metrics annually at the minimum level if 
an intermediate or in-depth level is not to be performed that year.
    (b) Assess each of the 23 metrics at the intermediate or in-depth 
level at least once within the 5-year cycle.
    (c) Adopt a 5-year plan which identifies the review strategy and 
schedule based upon the consideration of risk. The assessment level for 
each metric will vary at the discretion of the FHWA Division Office 
from minimum, intermediate, or in-depth, or as directed at the national 
level. The FHWA will update the 5-year plan as necessary based on the 
risks identified during the annual metric assessments.
    (d) In year five, examine the 5-year review history to identify 
trends in each metric area, to identify any gaps in the program or 
review process, and to develop a review strategy for the next 5 years.
    (e) At the completion of a PCA, assess the metric at the 
intermediate level or in-depth level.
    The determination of either an intermediate or in-depth level 
review after completion of a PCA is at the discretion of the FHWA 
Division Office.

Findings of Noncompliance

    The FHWA Division Office will issue a signed report to the State 
detailing the issues of noncompliance for a metric determined to be 
noncompliant by December 31 of the review period. The report will list 
the regulatory code and title for each noncompliance deficiency, 
identify the deficiency, and specify that the deficiency has to be 
corrected, or a PCA submitted, within 45 calendar days of notification. 
The State will have 45 days to either correct the issue of 
noncompliance or submit a PCA to FHWA as required by 23 U.S.C. 
144(h)(4)(B). The PCA should, at a minimum, include the following 
information:
    (a) Identify area of noncompliance;
    (b) Identify the date FHWA notified State of noncompliance;
    (c) Identify actions to be taken to address areas of noncompliance;
    (d) Estimate duration and completion date for each action;
    (e) Define frequency and reporting format which will be used to 
monitor; progress towards successful completion of the PCA; and
    (f) Identify what the State considers to be successful completion 
of PCA.
    After the State submits a PCA, FHWA will have 45 calendar days to 
review and if appropriate, accept the submitted PCA. Upon FHWA 
acceptance of the PCA, the final compliance determination for the 
associated metric will be conditionally compliant. If the PCA is not 
submitted to FHWA in 45 calendar days after notification of 
noncompliance, or the PCA does not address the issues of noncompliance, 
the final compliance determination for the associated metric will be 
noncompliant.
    Where an issue of noncompliance with the NBIS is identified outside 
the review procedures above, FHWA will notify the State of the 
noncompliance and will work with the State to establish a timeframe in 
which the issue of noncompliance must be addressed or an acceptable PCA 
submitted.

Penalty for Noncompliance

    The FHWA will continue to encourage the State to address the 
noncompliance issues following the final noncompliance determination 
and expiration of the period allowed to develop a PCA. If a State 
remains in noncompliance for any of the 23 metrics on August 1 
following a final compliance determination of noncompliance, FHWA will 
require the State to dedicate funds to correct the noncompliance, in 
accordance with 23 U.S.C. 144(h)(5). The State must submit an analysis 
of actions needed to correct the noncompliance to the FHWA Division 
Office no later than August 1. The analysis must identify the actions 
to be taken, estimate a duration and completion date for each action, 
and itemize an amount of funds to be

[[Page 27040]]

directed for each action. The analysis plan will require the approval 
of the FHWA Division Office. The FHWA will require on October 1 of that 
year, and each year thereafter as may be necessary, the State to 
dedicate funds apportioned to the State under sections 23 U.S.C. 119 
and 23 U.S.C. 133 to correct the issue of noncompliance.

    Authority: 23 U.S.C. 144 and 315; 23 CFR 1.32, and 650 Subpart 
C; 49 CFR 1.85.

    Issued on: May 5, 2014.
Gregory G. Nadeau,
Deputy Administrator, Federal Highway Administration.
[FR Doc. 2014-10800 Filed 5-9-14; 8:45 am]
BILLING CODE 4910-22-P