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Discretionary Bridge Candidate Rating Factor

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AGENCY:

Federal Highway Administration (FHWA) DOT.

ACTION:

Final rule.

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.

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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.

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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 Start Printed Page 63541would 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 § 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 as established 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 Start Printed Page 63542rule 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.

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List of Subjects in 23 CFR Part 650

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Issued on: October 4, 2002.

Mary E. Peters,

Federal Highway Administrator.

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In consideration of the foregoing, the FHWA amends title 23, Code of Federal Regulations, part 650, subpart G as set forth below:

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PART 650—BRIDGES, STRUCTURES, AND HYDRAULICS [REVISED]

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

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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).

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2. Revise § 650.703(b) and add § 650.703(c) to read as follows:

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Eligible projects.
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(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.

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3. Revise § 650.707(a) and (b) to read as follows:

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Rating factor.

(a) The following formula is to be used in the selection process for ranking discretionary bridge candidates.

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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.

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4. In § 650.709, revise paragraphs (a) and (c) to read as follows:

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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.

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(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.

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[FR Doc. 02-26130 Filed 10-11-02; 8:45 am]

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