[Federal Register Volume 67, Number 14 (Tuesday, January 22, 2002)]
[Proposed Rules]
[Pages 2837-2841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1028]


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

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SUMMARY: The FHWA proposes to revise its 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. These proposed 
changes would 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 seek to 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 this change would have minimal impact. None of the 
proposed changes will have an appreciable effect on either program 
eligibility or the application process.

DATES: Written comments are due on or before March 25, 2002. Comments 
received after that date will be considered to the extent practicable.

[[Page 2838]]


ADDRESSES: Mail or hand deliver comments to the docket number that 
appears in the heading of this document 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://dms.dot.gov/submit. 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.

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.nara.gov/fedreg and at the Government Printing Office's web 
page at http://www.access.gpo.gov/nara.

Background

    This proposed 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 published 
in the Federal Register 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).
    These proposed revisions to the regulation propose to include the 
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. These changes 
would:
    (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) Allow leveraged funds from local, State, county, or private 
sources to be used to reduce the total project cost for use in the 
rating factor formula. Reducing the total project cost with leveraged 
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.
    (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.

Section-by-Section Analysis

Section 650.703  Eligible Projects

    Paragraph (b) would be 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 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.
    Paragraph (c) would be 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

    We propose to revise paragraph (b) to change the term ``D'', 
``Defense Highway System Status,'' to ``N'', ``National Highway System 
Status.'' This revision will bring the formula in line with the current 
definition of the Federal-Aid Highway Systems found in 23 U.S.C. 103.

[[Page 2839]]

    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 (Pub. L. 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 proposing to change 
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 propose to change the original intent of the formula as 
established in the ISTEA.

Section 650.709  Special Considerations

    Paragraph (a) would be revised so that leveraged funds from 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 leveraged 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) would be 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 Sec. 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

    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, but the FHWA may issue a final 
rule at any time after the close of the comment period. In addition to 
the late comments, the FHWA will also continue to file relevant 
information in the docket as it becomes available after the comment 
closing date, and interested persons should continue to examine the 
docket for new material.

Executive Order 12866 (Regulatory Planning and Review) and 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 would be minimal. 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. This rulemaking merely proposes to amend 
current regulations. It is not anticipated that these proposed changes 
would 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 proposed 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 herby certifies that this proposed action would 
not have a significant economic impact on a substantial number of small 
entities for the purposes of the Regulatory Flexibility Act. Comments 
on these conclusions are welcomed and should be submitted to the 
docket.

Unfunded Mandates Reform Act of 1995

    This proposed 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)

    The proposed 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 that the 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.

[[Page 2840]]

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 proposal does not contain collection of 
information requirements for the purposes of the PRA.

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. 4321-4347) and has 
determined that this action would not have any effect on the quality of 
the environment.

Executive Order 12630 (Taking of Private Property)

    This proposed 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 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 proposed action 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 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 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: January 8, 2002.
Mary E. Peters,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA proposes to revise 
title 23, Code of Federal Regulations, part 650, subpart G 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), 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 February 21, 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] TP22JA02.002


The lower the rating factor, the higher the priority for selection and 
funding.
    (b) The terms in the rating factor are defined as follows:
    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);
    ADT is Average Daily Traffic in thousands taking the most current 
value from the national bridge inventory data;
    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.

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

    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);
    TPC is Total Project Cost in millions of dollars;
    HBRRP is Highway Bridge Replacement and Rehabilitation Program;
    ADT' is ADT plus ADTT.
    4. In Sec. 650.709, revise paragraphs (a) and (c) to read as 
follows:

[[Page 2841]]

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 which have not 
previously been allocated discretionary bridge funds. In addition, 
consideration will be given to candidates with leveraged funds from 
local, State, county, or private sources, but not from Federal sources. 
Leveraged funds 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. 02-1028 Filed 1-18-02; 8:45 am]
BILLING CODE 4910-22-P