[Federal Register Volume 67, Number 199 (Tuesday, October 15, 2002)]
[Rules and Regulations]
[Pages 63539-63543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-26130]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 650
[FHWA Docket No. FHWA--2000-7122]
RIN 2125-AE88
Discretionary Bridge Candidate Rating Factor
AGENCY: Federal Highway Administration (FHWA) DOT.
ACTION: Final rule.
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SUMMARY: This final rule amends the regulation on the discretionary
bridge program rating factor in order to incorporate several
administrative considerations that have proven effective in the project
selection process and to update the rating factor formula to reflect
the most current highway system designation. The changes make the
selection process easier for the FHWA to administer and the application
process easier for the States to understand. Except for the formula
change for defense highway status, these changes only incorporate
selection procedures that have been used effectively for many years. In
addition, formerly designated defense highway bridges are included in
the national highway system designation, so the formula change will
have minimal impact. None of the changes have an appreciable effect on
either program eligibility or the application process.
DATES: This rule is effective on November 14, 2002.
[[Page 63540]]
FOR FURTHER INFORMATION CONTACT: Mr. Steven L. Ernst, Office of Bridge
Technology, 202-366-4619, or Mr. Steven Rochlis, Office of the Chief
Counsel, 202-366-1395, FHWA, 400 Seventh Street, SW., Washington, DC
20590. 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
Internet users may access all comments received by the U.S. DOT
Dockets, Room PL-401, by using the universal resources locator (URL):
http://dms.dot.gov. It is available 24 hours each day, 365 days each
year. Please follow instructions online for more information and help.
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Government Printing
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet
users may reach the Office of the Federal Register's home page at
http://www.archives.gov and at the Government Printing Office's web
page at http://www.access.gpo.gov/nara.
Background
This rule implements 23 U.S.C. 144(g), as amended by sections 1109
and 1311 of the Transportation Equity Act for the 21st Century (TEA-
21), Public Law 105-178, 112 Stat. 107 (1988). Section 161 of the
Surface Transportation Assistance Act of 1982 (STAA), Public Law 97-
424, 96 Stat. 2097, at 2135, directed the Secretary of Transportation
(Secretary) to establish a rating factor for each discretionary bridge
program candidate based on seven specific items. Section 1311 of the
TEA-21, as added by Public Law 105-206, 112 Stat. 836 (1998), requires
the Secretary to establish criteria for all discretionary programs,
including the discretionary bridge program. On November 17, 1983, using
the criteria from the STAA, the FHWA issued a final rule on the
discretionary bridge regulations (48 FR 52292).
The funding for the discretionary bridge program is derived from
contract authority for the bridge program provided in section
1101(a)(3) of the TEA-21. The allocation of the discretionary bridge
funding by fiscal year for the discretionary bridge program is codified
at 23 U.S.C. 144(g)(1).
This final rule is based on the notice of proposed rulemaking
(NPRM) published on January 22, 2002, at 67 FR 2837 where the FHWA
requested comments on proposed revisions to the regulation on the
discretionary bridge program rating factor. This final rule is based on
the NPRM and all comments received in response to the NRPM.
These revisions in this final rule incorporate several
administrative considerations that have proven effective in the project
selection process and will update the rating factor formula to reflect
the most current highway system designation. These changes will:
(1) Require that candidate projects be ready to begin construction
in the fiscal year in which funds are available for obligation. This
will incorporate the administrative practice that has proven effective
to provide that candidate projects are sufficiently developed and ready
for construction and that funds are used in a timely manner. Projects
that are not ready for construction may languish for years,
encountering design, environmental, or funding problems that tie up
scarce Federal funding and deny funding for other projects which are
ready to build.
(2) Permit additional funds contributed from local, State, county,
or private sources or donations from third parties which reduce the
total cost or Federal contribution to a project to be used to reduce
the total cost for use in the rating factor formula. Reducing the total
project cost with additional State, local or third party contributions
provides an efficient and equitable assessment of the non-Federal
participation, over and above the usual State match. This also
continues the FHWA commitment to provide an accurate cost-benefit
analysis of candidate projects.
(3) Disallow any discretionary allocation to a State that has
transferred Highway Bridge Replacement and Rehabilitation Program funds
to other categories of Federal funding in the previous fiscal year.
Transferring bridge funds to other categories is an indication that a
State does not have a pressing need for bridge funds. This
administrative requirement has been used effectively to assure that
States first exhaust their regularly apportioned bridge funds before
applying for discretionary funds.
(4) Change the term ``D'' in the rating factor formula from defense
highway status to ``N'' for national highway system status (NHS). This
change is necessary because the defense highways are no longer a
recognized national system. The factor ``D'' originated in section 161
of the STAA of 1982, and data is no longer collected for this item.
Using the national highway system status is a reasonable alternative,
since the NHS is recognized as the nation's premier highway system in
23 U.S.C. 103, and one criteria in the code is that the NHS ``meets
national defense requirements.'' In addition, formerly designated
defense highway bridges are included in the national highway system,
and this change will have little effect on project rankings or
selection.
In light of the events of September 11, 2001, and the heightened
awareness of security issues, we have determined that discretionary
bridge funds could be used for security improvements on eligible
bridges.
Discussion of Comments
In response to the NRPM published on January 22, 2002, at 67 FR
2837, we received six comments to the docket. These comments were from
three State DOTs, one city DOT, and two private individuals. The
following is a summary and discussion of these comments:
One commenter suggested that the FHWA reduce the requirement that
the cost of one bridge must be $10 million to be eligible. This is a
statutory requirement and cannot be changed by regulation.
There were four comments concerning the proposal to disallow any
discretionary allocation to a State that has transferred its Highway
Bridge Replacement and Rehabilitation Program funds to other categories
of Federal funding in the previous fiscal year. Two commenters
supported the proposed change, and two commenters considered the change
overly restrictive. We feel that transferring bridge funds to other
categories is an indication that a State does not have a pressing need
for bridge funds, and that this requirement is therefore not overly
restrictive.
There were five comments concerning the change of the term ``D'' in
the rating factor formula from defense highway status to ``N'' for
national highway system status (NHS). Three commenters supported the
change. One commenter suggested using the strategic highway network
(STRAHNET) indicator to replace the term ``D.'' One commenter suggested
that no distinction be made between NHS and non-NHS bridges. One
commenter suggested that bridges over the NHS should also be considered
in this term. We believe that using the STRAHNET indicator is overly
restrictive and that the change to use the NHS for this term is
sufficiently broad to meet national defense requirements.
There were four comments questioning the clarity of the use of the
words ``leveraged funds'' as a means to reduce the total project cost
for use in the rating factor formula. Three commenters supported the
change. One comment thought that this change
[[Page 63541]]
would allow the use of ``creative financing'' or ``Federal innovative
financing techniques.'' We agree that the use of the term ``leverage''
requires clarification. It is the FHWA's intent that only funding or
contributions from State, county, local, or private sources be
considered as a special consideration under Sec. 650.709. These
additional funds or contributions must be non-Federal. This final rule
clarifies that the FHWA's intent is to give consideration to additional
non-Federal contributions made to a project by the project sponsor or
third parties. One commenter in support of using leveraged funds
suggested that the FHWA add a term to the formula to reflect the
change. The FHWA concluded that this change would over-complicate the
formula, and therefore the formula will not be changed, but additional
contributions from non-Federal sources will be allowed to reduce the
total project cost to compute the rating factor.
There were two comments about the requirement that projects be
ready for construction within the fiscal year for which funds are
requested. Both of these commenters indicated that the term ``ready for
construction'' is not well defined and may be overly restrictive. On
the contrary, it is our intent that projects be ready to advertise for
bids and that funds be obligated within the fiscal year for which such
funds are requested. Additionally, the term ``ready for construction''
is meant to be the least restrictive way to capture this intent.
Section-by-Section Analysis
Section 650.703 Eligible Projects
Paragraph (b) is revised to require that only those projects not
previously selected which will be ready to begin construction in the
fiscal year in which funds are available for obligation will be
eligible for funding. This incorporates the administrative practice
that has proven effective to provide that candidate projects are
sufficiently developed and ready for construction and that funds are
used in a timely manner. Projects that are not ready for construction
may languish for years, encountering design, environmental, or funding
problems that tie up scarce Federal funding and deny funding for other
projects that are ready to build.
Paragraph (c) is added to make any State that has transferred
Highway Bridge Replacement and Rehabilitation funds to other fund
categories ineligible for following fiscal year funding. Transferring
bridge funds to other categories is an indication that a State does not
have a pressing need for bridge funds. This administrative requirement
has been used effectively to assure that States first exhaust their
regularly apportioned bridge funds before applying for discretionary
funds.
Section 650.707 Rating Factor
In paragraph (b) the term ``D'', ``Defense Highway System Status,''
is changed to ``N'', ``National Highway System Status.'' This revision
brings the formula in line with the current definition of the Federal-
Aid Highway Systems found in 23 U.S.C. 103.
Section 161 of the Surface Transportation Assistance Act of 1982
(STAA) required the Secretary of Transportation to develop a selection
process for discretionary bridges authorized to be funded under 23
U.S.C. 144(g). Section 161 further outlined the seven criteria that
must be considered in evaluating bridge eligibility. One of these seven
criteria was the ``defense highway system status.''
Created under the Defense Highway Act of 1941 (Public Law 77-295,
55 Stat. 765), the Defense Highway System was designed to be a
``strategic network of highways that conforms to routes designated on
the diagrammatic map of principal highway traffic routes of military
importance, dated October 25, 1940, revised to May 15, 1941, and
approved by the Secretary of War.''
Since the passage of the STAA of 1982, the Defense Highway System
is now an element of the National Highway System, created by the
Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA),
Public Law 102-240, 105 Stat. 1914 (1991). Section 1006 of the ISTEA
redefined the Federal-aid Highway System to include the Interstate
System and the National Highway System. One of the components of the
National Highway System is ``a strategic highway network consisting of
a network of highways that are important to the United States strategic
defense policy and that provide defense access, continuity, and
emergency capabilities of the movement of personnel, materials, and
equipment in both peacetime and wartime. The highways may be on or off
the Interstate System and shall be designated by the Secretary in
consultation with the appropriate Federal agencies and the States.''
(23 U.S.C. 103(b)(2)(D)).
In comparing the components that make up the National Highway
System to the elements of the former Defense Highway System, the
``strategic network of highways'' is an essential element of both of
these highway systems. Therefore, the elements of the former Defense
Highway System make up one of the components of what is now referred to
as the National Highway System. Consequently, by changing the
definition of the factor ``D'' in the formula from the Defense Highway
System Status to ``N'' for National Highway System Status, we do not
change the original intent of the formula asestablished in the ISTEA.
Section 650.709 Special Considerations
Paragraph (a) is revised so that additional funds or contributions
made by local, State, county, or private sources may be used to reduce
the total project cost to calculate the rating factor. Reducing the
total project cost with these additional funds provides an efficient
and equitable assessment of the non-Federal participation, over and
above the usual State match. This also continues the FHWA commitment to
provide an accurate cost-benefit analysis of candidate projects.
Paragraph (c) is revised so that only those continuing projects
which will be ready to begin construction in the fiscal year in which
funds are available for obligation will be considered for funding. This
extends the requirement established in section 650.703(b) so that
previously selected projects must be ready for construction to the same
extent as new projects. As with new projects, previously selected
projects that are not ready for construction tie up Federal funds that
can be used for ready-to-build projects.
Rulemaking Analysis and Notices
Executive Order 12866 (Regulatory Planning and Review) and U.S. DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 nor
significant within the meaning of the U.S. Department of
Transportation's regulatory policies and procedures. It is anticipated
that the economic impact of this rulemaking will be minimal. These
changes will not adversely affect, in a material way, any sector of the
economy. In addition, these changes will 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. These proposed changes will not affect the total Federal
funding available. Consequently, a full regulatory evaluation is not
required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this
[[Page 63542]]
rule on small entities, such as city and county governments. The
modifications are substantially dictated by the statutory provisions of
23 U.S.C. and the TEA-21 and will substantially improve the selection
process. Accordingly, the FHWA hereby certifies that this action will
not have a significant economic impact on a substantial number of small
entities for the purposes of the Regulatory Flexibility Act.
Unfunded Mandates Reform Act of 1995
This rule will not impose a Federal mandate resulting 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. 1531 et seq.).
Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132, dated August 4, 1999, and
it has been determined this action does not have a substantial direct
affect or sufficient federalism implications on States that would limit
the policymaking discretion of the States. Nothing in this document
directly preempts any State law or regulation.
Executive Order 13175 (Tribal Consultation)
The FHWA has analyzed this action under Executive Order 13175,
dated November 6, 2000, and believes it 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.
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 FHWA has
determined that this rule does not contain collection of information
requirements for the purposes of the PRA.
National Environmental Policy Act
The agency has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has
determined that this action will not have any effect on the quality of
the environment.
Executive Order 12630 (Taking of Private Property)
This rule will not affect a taking of private property or otherwise
have taking implications under Executive Order 12630, Government
Actions and Interference with Constitutionally Protected Property
Rights.
Executive Order 12988 (Civil Justice Reform)
This 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 action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This 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 13211 (Energy Effects)
We have analyzed this 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 it is not a ``significant
regulatory action'' under Executive Order 12866 and 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 number 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, Soil conservation.
Issued on: October 4, 2002.
Mary E. Peters,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA amends title 23, Code
of Federal Regulations, part 650, subpart G as set forth below:
PART 650--BRIDGES, STRUCTURES, AND HYDRAULICS [REVISED]
1. Revise the authority citation for part 650 to read as follows:
Authority: 23 U.S.C. 109(a) and (h), 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 Sec. 650.703(b) and add Sec. 650.703(c) to read as
follows:
Sec. 650.703 Eligible projects.
* * * * *
(b) After November 14, 2002 only candidate bridges not previously
selected with a computed rating factor of 100 or less and ready to
begin construction in the fiscal year in which funds are available for
obligation will be eligible for consideration.
(c) Projects from States that have transferred Highway Bridge
Replacement and Rehabilitation funds to other funding categories will
not be eligible for funding the following fiscal year.
3. Revise Sec. 650.707(a) and (b) to read as follows:
Sec. 650.707 Rating factor.
(a) The following formula is to be used in the selection process
for ranking discretionary bridge candidates.
[GRAPHIC] [TIFF OMITTED] TR15OC02.010
[[Page 63543]]
The lower the rating factor, the higher the priority for selection and
funding.
(b) The terms in the rating factor are defined as follows:
(1) SR is Sufficiency Rating computed as illustrated in appendix A
of the Recording and Coding Guide for the Structure Inventory and
Appraisal of the Nation's Bridges, USDOT/FHWA (latest edition); (If SR
is less than 1.0, use SR=1.0);
(2) ADT is Average Daily Traffic in thousands taking the most
current value from the national bridge inventory data;
(3) ADTT is Average Daily Truck Traffic in thousands (Pick up
trucks and light delivery trucks not included). For load posted
bridges, the ADTT furnished should be that which would use the bridge
if traffic were not restricted. The ADTT should be the annual average
volume, not peak or seasonal;
(4) N is National Highway System Status. N=1 if not on the National
Highway System. N=1.5 if bridge carries a National Highway System road;
(5) The last term of the rating factor expression includes the
State's unobligated balance of funds received under 23 U.S.C. 144 as of
June 30 preceding the date of calculation, and the total funds received
under 23 U.S.C. 144 for the last four fiscal years ending with the most
recent fiscal year of the FHWA's annual call for discretionary bridge
candidate submittals; (if unobligated HBRRP balance is less than $10
million, use zero balance);
(6) TPC is Total Project Cost in millions of dollars;
(7) HBRRP is Highway Bridge Replacement and Rehabilitation Program;
(8) ADT' is ADT plus ADTT.
* * * * *
4. In Sec. 650.709, revise paragraphs (a) and (c) to read as
follows:
Sec. 650.709 Special considerations.
(a) The selection process for new discretionary bridge projects
will be based upon the rating factor priority ranking. However,
although not specifically included in the rating factor formula,
special consideration will be given to bridges that are closed to all
traffic or that have a load restriction of less than 10 tons.
Consideration will also be given to bridges with other unique
situations, and to bridge candidates in States that have not previously
been allocated discretionary bridge funds. In addition, consideration
will be given to candidates that receive additional funds or
contributions from local, State, county, or private sources, but not
from Federal sources which reduce the total Federal cost or Federal
share of the project. These funds or contributions may be used to
reduce the total project cost for use in the rating factor formula.
* * * * *
(c) Priority consideration will be given to the continuation and
completion of projects previously begun with discretionary bridge funds
which will be ready to begin construction in the fiscal year in which
funds are available for obligation.
[FR Doc. 02-26130 Filed 10-11-02; 8:45 am]
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