[Federal Register Volume 69, Number 239 (Tuesday, December 14, 2004)]
[Rules and Regulations]
[Pages 74419-74439]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-27355]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 650

[FHWA Docket No. FHWA-2001-8954]
RIN 2125-AE86


National Bridge Inspection Standards

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: The FHWA is revising its regulation on the National Bridge 
Inspection Standards (NBIS). This action is necessary to address 
perceived ambiguities in the NBIS that have been identified since the 
last update to the regulation in 1988. The changes clarify the NBIS 
language that is vague or ambiguous; reorganizes the NBIS into a more 
logical sequence; and makes the regulation easier to read and 
understand, not only by the inspector in the field, but also by those 
administering the highway bridge inspection programs at the State or 
Federal agency level.

DATES: This rule is effective January 13, 2005. The incorporation by 
reference of the publications listed in this rule is approved by the 
Director of the Federal Register as of January 13, 2005.

FOR FURTHER INFORMATION CONTACT: Mr. Wade F. Casey, P.E., Federal Lands 
Highway, HFPD-9, (202) 366-9486, or Mr. Robert Black, Office of the 
Chief Counsel, HCC-30, (202) 366-1359, Federal Highway Administration, 
400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are 
from 7:45 a.m. to 4:15 p.m. e.t., Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    An electronic copy of this document may also be downloaded by using 
a computer, modem and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users may also reach the 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.

Background

    The FHWA bridge inspection program regulations were developed as a 
result of the Federal-Aid Highway Act of 1968 (Pub. L. 90-495, 82 Stat. 
815) that required the Secretary of Transportation to establish NBIS to 
ensure the safety of the traveling public.
    The 1968 Federal-Aid Highway Act directed the States to maintain an 
inventory of Federal-aid highway system bridges. The Federal-Aid 
Highway Act of 1970 (Pub. L. 91-605, 84 Stat. 1713) limited the NBIS to 
bridges on the Federal-aid highway system. The Surface Transportation 
Assistance Act of 1978 (Pub. L. 95-599, 92 Stat. 2689) extended NBIS 
requirements to bridges greater than 20 feet on all public roads. The 
Surface Transportation and Uniform Relocation Assistance Act of 1987 
(Pub. L. 100-17, 101 Stat. 132) expanded the scope of bridge inspection 
programs to include special inspection procedures for fracture critical 
members and underwater inspection.
    The FHWA published an advance notice of proposed rulemaking (ANPRM) 
on September 26, 2001, (66 FR 49154) to solicit comments on whether to 
revise its regulation on the NBIS. The majority of commenters to the 
ANPRM recommended that the FHWA revise the NBIS regulation.

Discussion of Comments Received to the Notice of Proposed Rulemaking 
(NPRM)

    The FHWA published an NPRM on September 9, 2003, at 68 FR 53063, to 
solicit public comments on proposed changes to the NBIS. All comments 
received to the NPRM were carefully considered in the decision to 
publish a final rule. Commenters included: representatives from 1 
Federal agency, 25 States, 44 counties, 9 cities, 1 Indian tribal 
government, 4 consulting firms, the American Association of State 
Highway and Transportation Officials (AASHTO), the Association of 
Diving Contractors International (ADCI), the Illinois Association of 
County Engineers (IACE), the National Association of County Engineers 
(NACE) and 3 private citizens.

Discussion of Rulemaking Text

    The following summarizes the comments submitted to the docket by

[[Page 74420]]

the commenters on the NPRM, notes where and why changes have been made 
to the rule, and why particular recommendations or suggestions have not 
been incorporated into the following regulations. Paragraph references 
are as designated in the NPRM, unless otherwise stated.

Summary of Comments

    In general, comments received to the NPRM provided both support for 
and opposition to the proposed changes. A number of commenters were 
concerned about the cost of the proposed changes versus the benefit and 
impact on bridge safety. Other commenters believed that the proposed 
regulation would help strengthen and improve the nation's bridge 
inspection program. Some commenters argued that there were still areas 
of ambiguity. Other commenters noted we had achieved our objective of 
addressing ambiguities in the current NBIS regulation. Commenters 
provided a lot of very good suggestions that have been considered in 
the final rule.

Section-by-Section Analysis

Section 650.301 Purpose

    The FHWA did not receive any comments that specifically addressed 
this section.

Section 650.303 Applicability

    The Missouri and Massachusetts DOTs agreed that the NBIS apply only 
to highway bridges.
    The Illinois and Oklahoma DOTs as well as the AASHTO asked that 
definitions of ``public road'' and ``highway bridge'' be included to 
further clarify applicability. The Oregon DOT and the U.S. Navy also 
wanted to include a definition for ``highway bridge.''
    FHWA response: The terms ``public road'' and ``highway'' are 
already defined in 23 U.S.C. 101. We added to the list of definitions 
in Sec.  650.305 a reference to the existing definitions for ``public 
road'' and ``highway.''
    The Iowa DOT pointed out that the AASHTO Manual for Condition 
Evaluation of Bridges \1\ (hereinafter referred to as the AASHTO 
Manual) includes bridges that carry pedestrians and other non-highway 
passageways and that the NBIS needs to be very clear that it does not 
apply to these structures.
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    \1\ The American Association of State Highway and Transportation 
Officials (AASHTO) Manual for Condition Evaluation of Bridges, 2000, 
Second Edition may be obtained upon payment in advance by writing to 
AASHTO, 444 N. Capitol Street, NW., Suite 249, Washington, DC 20001; 
or it may be ordered on line at the following URL: http://
www.aashto.org/aashto/home.nsf/frontpage.
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    FHWA response: As clearly stated in Sec.  650.303, the NBIS apply 
only to ``highway bridges'' located on ``public roads.'' The AASHTO 
Manual may discuss other non-highway passageways; however, these 
bridges are not covered under the NBIS.
    Collins Engineers and the U.S. Navy were concerned regarding the 
inspection of pedestrian and railroad bridges and potential threat to 
travelers on public highways. Likewise, Collins Engineers was concerned 
about privately owned bridges used by the motoring public.
    FHWA response: Some confusion has existed about the applicability 
of the NBIS to privately owned highway bridges. While 23 U.S.C. 151 
states that the NBIS are for all highway bridges, the FHWA has no legal 
authority to require private bridge owners to inspect and maintain 
their bridges. While the FHWA does not have the authority to compel the 
States to inspect privately owned highway bridges, the FHWA strongly 
encourages that private bridge owners follow the NBIS as the standard 
for inspecting privately owned highway bridges. Because of the seamless 
nature of the transportation infrastructure within many States, the 
motoring public does not know the difference between a privately owned 
and publicly owned highway bridge. Therefore, States should encourage 
private bridge owners to inspect their highway bridges in accordance 
with the NBIS or reroute any public highways away from such bridges if 
NBIS inspections are not conducted.
    The National Bridge Inventory (NBI) lists roughly 2,200 privately 
owned highway bridges in some 41 States and Puerto Rico. However, the 
total number of privately owned highway bridges is unknown because the 
States are not required to report them to the FHWA. Many privately 
owned highway bridges can be assumed to carry public roads, some of 
which could be significant highways. The FHWA does not know if 
privately owned highway bridges are inspected using the NBIS or other 
standard and the FHWA does not know the level to which privately owned 
highway bridges are maintained.
    Public authorities must follow the NBIS for all highway bridges 
located on all public roads. The term ``public road'' is defined in 23 
U.S.C. 101(a)(27) as ``any road or street under the jurisdiction of and 
maintained by a public authority and open to public travel.'' The NBIS 
applies to seasonally or periodically opened public roads and to 
limited access public access roads.
    Highway bridges owned by Indian tribes are in a separate category. 
Indian tribes, as sovereign nations, have a unique government-to-
government relationship with the Federal government. There is no 
explicit requirement in 23 U.S.C. 144 that requires inventory of 
tribally owned bridges. Likewise, there is no explicit requirement in 
23 U.S.C. 151 that requires inspection of tribally owned bridges. 
Absent such clear language, the FHWA has no legal authority to require 
federally recognized Indian tribes to inventory tribally owned bridges 
or to comply with the NBIS. On the other hand, in order for tribally 
owned bridges to participate in the Indian Reservation Road Bridge 
Program (IRRBP) \2\ and be eligible for Federal funding, a tribally 
owned bridge has to be inspected and placed in the NBI. Hence, for 
purposes of this rule, tribally owned bridges mean those bridges 
designed and constructed to FHWA standards, meeting the NBIS definition 
of a bridge, and open to the public. Finally, the FHWA strongly 
encourages that Indian tribes follow the NBIS, as the standard for 
inspecting tribally owned bridges, particularly those open to public 
travel (see 23 U.S.C. 151 for the statutory requirement for the 
National bridge inspection program).
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    \2\ The IRRBP was established under the Transportation Equity 
Act for the 21st Century (see 23 U.S.C. 202(d)(4)(A) and the 
regulation can be found at 23 CFR 661) for improving deficient 
Indian reservation road highway bridges.
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    The FHWA recognizes that the NBIS does not apply to federally owned 
bridges on roads that are used only by employees and not open to the 
general public. These bridges and administratively used roads support 
behind-the-scenes operations and are intended for use by employees 
engaged in official business.
    The NBIS does not apply to tunnels, bridges that carry only 
pedestrians, railroad tracks, pipelines, or other types of non-highway 
passageways. Public authorities or bridge owners are strongly 
encouraged to inspect these non-highway carrying bridges and other 
significant structures. Similarly, the NBIS does not apply to the 
inspection of sign support structures, high mast lighting, retaining 
walls, noise barriers structures, and overhead traffic signs. Public 
authorities have an obligation to the motoring public to periodically 
inspect and maintain these facilities. Non-public authorities including 
utility companies, railroads, and private owners who may own these 
facilities, are strongly encouraged to periodically inspect and 
maintain their structures for the safety of the motoring public.

[[Page 74421]]

    There are some minimal NBI data items that are collected for 
highway tunnels and non-highway bridges over certain highways that can 
be collected without trespassing on private property. These items are 
described in the ``Recording and Coding Guide for the Structure 
Inventory and Appraisal of the Nation's Bridges.'' \3\
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    \3\ The ``Recording and Coding Guide for Structure Inventory and 
Appraisal of the Nation's Bridges,'' December 1995, Report No. FHWA-
PD-96-001, is available electronically at the following URL: http//
www.fhwa.dot.gov//bridge/mtguide.doc and may be inspected and copied 
as prescribed in 49 CFR part 7.
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    The Chickasaw Nation commented that it agreed that tribally owned 
bridges are not subject to 23 U.S.C. 144 explicitly, however; if a 
tribally owned bridge is planned for replacement with Federal funds 
such as IRRBP funds,\4\ then an inspection must be conducted. It also 
cautioned against considering tribally owned bridges not subject to the 
NBIS when many tribes consider all Indian Reservation Road (IRR) routes 
and bridges that fall within Indian lands to be tribally owned with 
right of way granted to the Bureau of Indian Affairs. It indicated that 
all bridges that fall on an IRR to be public regardless of ownership.
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    \4\ IRRBP funds are provided under the Federal Lands Highway 
Program see 23 U.S.C. 202(d)(4)(A) and the regulation can be found 
at 23 CFR 661.
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    FHWA response: As stated previously, one of the requirements for 
participation in the IRRBP and eligibility for Federal funding is for 
the bridge to be recorded in the NBI maintained by the FHWA (see 23 CFR 
661.25). In order for this to occur the bridge has to be inspected 
regardless of ownership. Therefore we agree that a tribally owned 
bridge needs to be inspected and placed in the NBI in order to obtain 
Federal funding via the IRRBP. For purposes of this rule, tribally 
owned bridges mean those bridges designed and constructed to FHWA 
standards, meeting the NBIS definition of a bridge, and open to the 
public. This rule addresses the responsibility for bridge safety 
inspections. It does not provide or intend to address ownership or 
jurisdictional issues of bridges on Indian reservations.

Section 650.305 Definitions

    The Massachusetts, South Dakota and Tennessee DOTs were in favor of 
including a definition section.
    The South Dakota DOT wanted clarification of what is meant by 
``major flood event,'' ``critical finding,'' and ``predominant bridge 
inspection experience.'' The Tennessee DOT wanted to know what 
``critical finding'' means as used in the proposed Sec.  650.313(l).
    FHWA response: We added a definition for ``critical finding.'' A 
definition for ``major flood event'' is not required since the term has 
been removed from the regulation. We believe that the definition for 
``bridge inspection experience,'' which includes the statement that 
``the predominate amount'' of experience be ``bridge inspection,'' 
adequately addresses the intent that a preponderance of the experience 
for qualification should come from other than bridge design, bridge 
maintenance or bridge construction experience.
    The Kansas DOT wanted the NBIS to either define, replace or 
eliminate the following terms: ``public road,'' ``highway bridge,'' 
``professional engineer,'' ``predominant and substantial,'' ``80 
hours,'' ``damage inspection,'' and ``routine permit inspection.''
    The Iowa and Kansas DOTs as well as the AASHTO each recommended 
that the definition for ``damage inspection'' be changed. The Illinois 
DOT proposed a definition for ``damage inspection.''
    The Missouri DOT indicated a preference for retaining the current 
definition for a ``bridge.'' The Iowa DOT recommended a change in the 
first sentence of the ``bridge'' definition deleting reference to 
``other moving loads.''
    The Kansas DOT and the AASHTO did not like the 80-hour requirement 
used in the definition for ``comprehensive bridge inspection 
training.'' The Kansas DOT was also concerned about its impact on local 
agencies being able to find qualified consultants with this level of 
training.
    The Iowa DOT as well as the AASHTO recommended inclusion of the 
term ``professional engineer'' within the NBIS.
    The New Jersey DOT wanted to include a definition for ``public 
road.''
    The Washington DOT wanted the term ``public authority'' defined in 
the NBIS.
    The Wyoming DOT commented that the NBIS should clearly identify 
whether it applies to ``privately owned bridges,'' those located on 
seasonally opened roads, and those with limited access.
    FHWA response: Definitions have been added for ``professional 
engineer'' and ``damage inspection.'' The definition from the AASHTO 
manual for ``damage inspection'' that was proposed by the Illinois DOT 
has been adopted. The terms ``80 hours,'' ``substantial,'' ``routine 
permit inspection,'' and ``public authority'' will not be used in the 
regulation. The term ``predominate'' will continue to be used in the 
definition of bridge inspection experience as explained above. The 
terms ``highway'' and ``public road'' are already defined in 23 U.S.C. 
101 (a) (11) and (27), respectively. Since the U. S. Code takes 
precedence over regulations, we reference 23 U.S.C. for the definitions 
for highway and public road. These definitions will be cited in Sec.  
650.305.
    We will continue to use the AASHTO definition for ``bridge,'' an 
action supported by the majority of commenters. The FHWA adopted the 
AASHTO definition for ``bridge'' early in the National Bridge 
Inspection Program. Title 23, U.S.C., section 151 directed the 
Secretary to establish national bridge inspection standards in 
consultation with the State transportation departments and interested 
and knowledgeable private organizations and individuals. Consultation 
with the State transportation departments through the AASHTO Highway 
Subcommittee on Bridges and Structures, convinced the FHWA to adopt the 
AASHTO definition of bridge that has been used since the NBIS was first 
drafted.
    The ADCI wanted the NBIS to include Occupational Safety and Health 
Administration (OSHA) regulation requirements when diving operations 
are conducted. The ADCI also commented that a definition for OSHA 
Safety Standards for Commercial Diving Operations be included in the 
NBIS. The ADCI also recommended that the term ``designated diving 
supervisor'' be included with the definitions along with a revised 
definition for underwater inspection to indicate diving operations 
shall be completed in accordance with OSHA regulations.
    FHWA response: The FHWA believes that safe diving practices as 
prescribed by OSHA regulations should be employed during all bridge 
inspection diving, but we do not reference them. OSHA regulations 
pertain to both underwater and above-water inspections, so any omission 
in this standard does not relieve diving inspectors of the requirement 
to follow OSHA regulations.
    The term ``designated diving supervisor'' is not used in the 
regulation and will not be included in the definition section.
    The Tennessee DOT provided commentary and questions regarding the 
use of the terms ``action plan'' and ``inspection plan.''
    FHWA response: The Tennessee DOT points out that these terms are 
used throughout the regulation and that their

[[Page 74422]]

intent should be clear and consistent. Where these terms are used, we 
have made changes to clarify their meaning, or we have removed them. 
Refer to the preamble discussion of Sec.  650.313.
    The AASHTO and Kansas DOT indicated that the word ``and'' was 
missing in the AASHTO title.
    FHWA response: We agree and have made this change.
    The Massachusetts, Minnesota, Kansas, Michigan, Iowa, and Arkansas 
DOTs along with the AASHTO asked for a more precise definition of the 
terms used in the definition for ``bridge inspection experience.'' The 
IACE discussed the impact of this definition on inspections performed 
by local agencies.
    FHWA response: We have reviewed the definition of ``bridge 
inspection experience'' and made minor changes to address these 
comments. We noted that this definition is adequate to convey the 
minimum requirements for experience to assure that inspectors are 
qualified.
    The New Jersey, Minnesota and Tennessee DOTs wanted clarification 
of the term ``complex bridge.''
    FHWA response: The definition gives the States latitude to 
determine which bridges should be placed in this category and receive 
special attention. Including complex bridges in Sec.  650.313 captures 
the intent in the AASHTO Manual that some structures deserve special 
attention. Cable stayed bridges, suspension bridges, and movable 
bridges require specialized procedures. The bridge inspection program 
manager, as defined in Sec.  650.305, may determine that other bridge 
types require special attention.
    The Michigan DOT recommended defining the term ``fatigue 
sensitive'' to distinguish from the term ``fracture critical.''
    FHWA response: Since the term ``fatigue sensitive'' refers to steel 
members or details that may or may not be part of a load-path redundant 
system, and since this term is not used in the regulation, we have not 
added a definition to Sec.  650.305.
    The Iowa DOT recommended that ``fracture critical inspection'' be 
changed to ``fracture critical member inspection.'' It also provided 
some commentary on the use of the term ``hands on'' in this definition 
and made some suggestions to modify the definition. The Minnesota and 
Oregon DOT were concerned about the definition for ``fracture critical 
member'' and recommended that it be rewritten.
    FHWA response: The term ``fracture critical'' is consistent with 
the AASHTO Manual. The term ``fracture critical member inspection'' 
will be used in the regulation. The intent is to give special attention 
to member or member components in spans that do not have load path 
redundancy.
    The IACE, Michigan and Iowa DOTs commented that the definition for 
``hands-on'' inspection should be modified using ``may be supplemented 
by nondestructive testing'' instead of ``are supplemented by 
nondestructive testing.''
    The Iowa DOT recommended that the definition for ``in-depth 
inspection'' be modified to note that ``hands on inspection may be 
necessary'' but not mandatory.
    FHWA response: The second sentence of the definition for ``hands-
on'' has been modified by changing ``are'' to ``may be'' so that 
nondestructive testing is not a requirement of hands-on inspection. The 
definition for ``in-depth inspection'' has been modified to note that 
hands-on inspection may be necessary at some locations.
    The Michigan DOT provided a discussion and questions regarding 
initial inspection. Their discussion states that the definition should 
include the term ``routine inspection procedures'' and require 
timelines for ratings. Collins Engineers commenting on Sec.  
650.311(a)(1) pointed out that the depth of routine, biennial 
inspections varies greatly and recommended a change reflecting that 
routine inspections be performed hands-on.
    FHWA response: We have adopted the definitions for inspection types 
including ``initial'' and ``routine'' that are consistent with the 
AASHTO Manual.
    The Indiana and Maryland DOTs provided commentary and suggested 
that the definition and role of the ``program manager'' needs 
clarification.
    FHWA response: The Indiana DOT's concern is that the definition 
allows more than one program manager. That is a correct assessment of 
our intent. We do not want to restrict those States that want to have 
more than one program manager. However, the FHWA desires one individual 
with overall responsibility for Sec.  650.307(c)(1) and (2). The 
Maryland DOT wants the definition changed to ``eliminate the need for 
any small local jurisdiction to require fully trained individuals.'' A 
qualified team leader must be present for each initial, routine, in-
depth, fracture critical member and underwater inspection, regardless 
of the jurisdiction, and a program manager must be available to provide 
overall direction to team leaders. The program manager definition in 
Sec.  650.305 has been revised and the role clarified in Sec.  650.307.
    The Arkansas DOT wanted the term ``responsible capacity'' defined 
in the NBIS.
    FHWA response: We have removed this term from the regulation.
    The Iowa, Kansas and Washington DOTs as well as the AASHTO 
recommended that the definition for ``legal load'' be modified.
    FHWA response: This definition allows the States the flexibility to 
use their own legal loads, established in State law.
    The Illinois, Kansas, and Wisconsin DOTs and the AASHTO recommended 
changes for the definition ``routine permit load.''
    FHWA response: We have amended the definition in Sec.  650.305 to 
reflect these recommendations.
    The Texas and Oklahoma DOTs recommended that the definition for 
``scour critical'' be modified.
    FHWA response: We have considered the comments on this topic and 
have provided a definition for ``scour critical bridge.'' The NBI item 
number 113, scour critical bridge, is used to identify the current 
status of a bridge regarding its vulnerability to scour.
    The observed scour condition is one determined during a bridge 
inspection, or during/after a flood event. A conclusion of instability 
would typically be attained by comparing the observed scour condition 
with: (a) The known foundation type and tip elevation, and (b) computed 
scour critical elevation as determined by an interdisciplinary team.
    The evaluated scour condition is one determined by: (1) An 
assessment of the bridge information available such as foundation type 
and tip elevation; location of the bridge; review of bridge inspection 
files; comparison of channel profiles upstream of the bridge, within 
the bridge opening and downstream of the bridge; soil type; historical 
data from other bridges on an adjacent stream, and/or (2) a calculation 
to determine potential scour around the bridge foundation and/or stream 
instability in the vicinity of the bridge.
    The Washington DOT recommended that the NBIS include a definition 
for ``State transportation department.''
    FHWA response: The term ``State transportation department'' is 
already defined in 23 U.S.C. 101(a)(11).

Section 650.307 Bridge Inspection Organization

Federally Owned Bridges
    The Missouri DOT wanted clarification that in Sec.  650.307(a) 
States are relieved of responsibility for federally owned bridges. The 
Kansas

[[Page 74423]]

DOT indicated it is having problems obtaining data on federally owned 
bridges. The AASHTO suggested that supplying Federal bridge data is 
waived for Federal agencies.
    FHWA response: States are no longer responsible for reporting 
inspection data on Federal bridges to the FHWA. Federal bridge owners 
report inspection data directly to the FHWA. The FHWA supplies Federal 
bridge inspection data to the States. For security and other purposes, 
the States should have an up-to-date inventory of Federal bridges 
located within each State.
Bridge Inspection Program Responsibility
    The Michigan and Iowa DOTs in response to Sec.  650.307(a) argued 
that public authorities and/or bridge owners should be responsible for 
bridge inspections and not the State. The Washington DOT noted that the 
majority of county and city bridges are inspected by their owners.
    FHWA response: The present bridge inspection standards regulation 
requires the States to have a bridge inspection organization capable of 
performing the bridge inspections (23 CFR 650.303(a)). The part of the 
regulation that requires the actual inspection of all bridges on public 
roads (Sec.  650.305(a)) is written in the passive voice. Consequently, 
there might be some confusion as to who is responsible for inspecting 
each highway bridge in a State.
    The FHWA believes, however, that the language of 23 U.S.C. 151 is 
clear that a State is ultimately responsible for the inspection of 
public highway bridges within the State, except for those that are 
federally owned or tribally owned. Subsection (a) of section 151 
directs the Secretary, ``in consultation with the State transportation 
departments and interested and knowledgeable private organizations,'' 
to establish the bridge inspection standards for ``all highway 
bridges.'' In subsection (b) the Congress mandates that the standards 
shall, at a minimum, ``specify, in detail, the method by which such 
inspections shall be carried out by the States.'' The final rule clears 
up any ambiguity caused by the existing regulation.
    The State DOT can delegate to a smaller unit of the State, for 
example, a city or county, the inspection of bridges owned or 
controlled by that unit. A State can direct smaller State units to 
conduct the NBIS inspections on bridges under its control and that 
would satisfy Sec.  650.307. However, because of the fundamental 
relationship established in title 23 of the U.S. Code between the FHWA 
and a State DOT, if the inspections by a city or county were not done, 
the FHWA could withhold Federal-aid highway funds from the State.
Bridge Inspection Funding
    The NACE commented on Sec.  650.307(a) and asked why counties have 
to complete inspections using their own funds.
    FHWA response: Federal Bridge Funds (i.e., Highway Bridge 
Replacement and Rehabilitation Program (HBRRP) funds) can be spent on 
bridge inspection activities, regardless of the agency performing the 
inspections. The use and distribution of HBRRP funds within the State 
is within the State's discretion.
Quality Assurance and Quality Control
    The Wyoming DOT commented on Sec.  650.307(c)(1) that all 
references to ``quality assurance (QA)'' be removed.
    FHWA response: In the past, the FHWA addressed QA as part of a 
nonregulatory supplement to the Federal-aid program guide. QA is also 
addressed in the AASHTO Manual. Many States currently have active QA 
programs; some do not. The FHWA believes that it is imperative that a 
statewide or Federal agency wide QA program be in place to assure that 
bridge inspections are being conducted in accordance with these 
standards and to assure the quality of inspection data. We have 
included a definition of quality control (QC) and QA to reflect this in 
Sec.  650.305.
Role of Consultants
    The Washington DOT had a question regarding Sec.  650.307(c) for 
acceptable roles of consultants based on the discussion in the preamble 
to the NPRM.
    FHWA response: Consultants may perform Sec.  650.307(c)(1) and/or 
(2) activities and functions. To ensure that all NBIS requirements are 
met, the State still needs a program manager, even when paragraph 
(c)(1) activities are performed by consultants.
    The California DOT supports the changes contained in Sec.  
650.307(c).
OSHA Standards
    The ADCI wanted to amend Sec.  650.307(c) to add requirements for 
bridge inspection organizations to conduct dive operations in a safe 
manner by establishing dive team member qualifications and training for 
the conduct of safe diving operations that meet or exceed OSHA 
standards.
    FHWA response: This comment was previously addressed in the 
discussion of Sec.  650.305 regarding diving operations meeting or 
exceeding OSHA standards.
Delegation of NBIS Functions
    The Hillsdale County Road Commission (HCRC) in Michigan, commented 
that Sec.  650.307(d) may enable the State to perform inspections of 
county bridges and was concerned about what will be charged and whether 
control will be lost regarding bridge postings.
    FHWA response: States have always had the responsibility for 
inspections under the NBIS. Delegation of the NBIS functions to 
counties and other local agencies is a State issue.
Written Agreements
    The Missouri, Illinois, Kansas, and Michigan DOTs as well as the 
AASHTO commented on Sec.  650.307(d) and the ramifications of entering 
in agreements with local agencies, stating such agreements should not 
be part of the NBIS. The Indiana DOT indicated that it would need 
additional resources (i.e., funding) in order to comply with this 
section and stated that the intent of clearly defining responsibilities 
was good, but did not require a regulatory change. The Illinois DOT and 
the IACE maintain that local agencies and the State have excellent 
working relationships and need no agreements or State statutes. The New 
Jersey DOT expressed concern that this section might be interpreted to 
mean that bridge inspections are discretionary and may limit delegation 
to public authorities. The Minnesota DOT suggested a rewrite to this 
section to indicate that delegation does not relieve the State of 
program oversight or quality assurance. The Alabama DOT commented that 
the FHWA should ``acknowledge that States may delegate NBIS 
requirements (not responsibilities) in accordance with any laws, 
regulations or policies that the States may have in effect.'' The 
California DOT supported the proposed change. The Marshal and Miami 
Counties in Kansas indicated that the States should be responsible to 
assure compliance and delegation should be by written agreement. The 
Miami County in Kansas further commented that the consequences of not 
following the NBIS should be strongly stated. Thirty-seven Kansas 
counties, seven Kansas cities, and one Kansas consultant commented that 
they did not want written agreements that were proposed in Sec.  
650.307(d) and that local agencies currently have a good working 
relationship with the State.
    FHWA response: The FHWA has reconsidered its position on written 
agreements after reviewing the many

[[Page 74424]]

comments provided. The proposed requirement that delegation must be 
according to State law or fully executed written agreements has been 
removed. However, State transportation departments are encouraged to 
use formal means in delegating these activities and it is essential 
that all parties involved have a clear understanding as to what 
requirements are and are not being delegated. The State is still 
ultimately responsible for the inspection of public highway bridges 
within the State, except for those that are federally owned or tribally 
owned.
Program Manager Leadership
    The Indiana DOT, in response to Sec.  650.307(e), stated it would 
need additional resources (i.e., funding) in order to comply with this 
section and argued that it did not require a regulatory change. The 
Illinois, Alabama, Kansas, Michigan and Oregon DOTs as well as the 
AASHTO were concerned regarding proposed language related to the 
requirement for ``program manager.''
    The Illinois DOT noted that many local agencies use consulting 
engineers and that the rule change prohibits ``program managers'' from 
being consultants. The NACE stated that program manager guidelines are 
sufficient; however, the expectation that the same experience be 
required of a town with one bridge is not practical. The Marshal County 
in Kansas commented that delegated authorities be allowed to hire 
consultants to act as ``project'' managers. The Iowa DOT commented that 
Sec.  650.307(e) qualification standard would place more education, 
training and experience requirements onto the counties and cities. 
Thirty-seven Kansas counties, seven Kansas cities, and one Kansas 
consultant commented that local agencies should continue to have the 
option to hire a consultant to handle inspections. The Alcona County 
Road Commission (ACRC) in Michigan commented that program manager 
requirements applying to towns with only one bridge is cause for 
serious local agency concern and requires further discussion.
    FHWA response: The FHWA has reconsidered its position regarding 
each organizational unit being led by a program manager. The program 
manager qualification requirement applies to the overall State or 
Federal agency program level. Each State transportation department or 
Federal agency is only required to have one statewide or Federal agency 
wide program manager. Applying the program manager requirement to 
organizational sub-units or delegated agencies is at the discretion of 
the State or Federal agency. However, State transportation departments 
remain responsible for the application of these standards to all 
highway bridges, even when inspections or other requirements are 
delegated. For this reason, State transportation departments should be 
cautious when delegating inspections or other requirements to local 
agencies that do not have a qualified bridge inspection program 
manager. In such cases, as in the example of the small town with one 
bridge and no qualified program manager, the State will assume a direct 
program manager role in the delegated inspection program.
    Qualified consultants may be hired or contracted by State 
transportation departments, their delegated agencies, and Federal 
agencies to perform the activities and functions of these standards. 
However, to ensure that all of the requirements of these standards are 
met, the States or Federal agencies still need a program manager, even 
when consultants perform Sec.  650.307(c)(1) activities and functions.

Section 650.309 Qualifications of Personnel

Professional Engineer Discipline; Comprehensive and Refresher Training
    The Missouri DOT commented relative to Sec.  650.309 (a)(1), that 
the NBIS should not specify the discipline of the professional engineer 
and that the States or Federal agencies can elect to adopt even more 
specific requirements. A private citizen noted that the professional 
engineer discipline should be specified as structural, and, that too 
much emphasis was placed on the professional engineer title rather than 
the amount and extent of experience and training. The New Jersey DOT 
stated that the program manager should be required to have field 
experience.
    FHWA response: Our position remains as stated in the preamble to 
the NPRM that the laws governing licensure within each State or Federal 
agency ensure that professional engineers only practice engineering in 
the fields in which they are qualified and experienced. Furthermore, 
the State or Federal agency is responsible for ensuring that those 
individuals involved in the bridge inspection program meet the minimum 
qualifications defined in the NBIS. Although the regulations do not 
specify the engineering discipline of the professional engineer, 
individual States or Federal agencies can adopt requirements that are 
more stringent than the minimum requirements established by the NBIS.
    The FHWA agrees that additional emphasis on training is needed. 
Recommendations from the June 2001 FHWA study of the ``Reliability of 
Visual Inspection for Highway Bridges'' \5\ also support the need for 
further emphasis on training. Accordingly, the regulation includes 
comprehensive training and refresher training requirements for program 
managers and team leaders.
---------------------------------------------------------------------------

    \5\ Reliability of Visual Inspection for Highway Bridges Vols I 
and II [FHWA-RD-01-020 ; FHWA-RD-01-021] is a publication which 
documents research done on the accuracy and reliability of the 
highway bridge inspection process. This report is available through 
the National Technical Information Service, Springfield, Virginia 
22161 or it may be ordered online at the following URL: http://
www.ntis.gov.
---------------------------------------------------------------------------

Program Manager Qualifications
    The South Dakota DOT indicated that they have a professional 
engineer exemption within their State and asked how the FHWA would 
address this issue.
    FHWA response: Section 650.309 (a)(1) allows two ways of qualifying 
as a program manager, one of which is being a professional engineer. In 
those instances where the State exempts its staff from registration 
requirements, a program manager would have to either be a professional 
engineer, despite the exemption for State government employees, or have 
10 years of bridge inspection experience.
Completion of Comprehensive Bridge Inspection Training
    Mr. Todd Hertel commented on Sec.  650.309(a)(2), asking why the 
program manager is given 12 months to complete training and not the 
team leader.
    FHWA response: Ideally, an individual will have completed the 
comprehensive bridge inspection training prior to becoming a team 
leader or program manager. Exceptions to this should be rare. In 
recognition of the fact that some flexibility is needed to accommodate 
employee turnover and scheduling of the training, we have removed the 
12-month time frame from Sec.  650.309(a)(2). As stated above, the 
expectation is that individuals will complete the comprehensive 
training prior to becoming program managers or team leaders. When this 
is not possible, those individuals will aggressively seek to obtain the 
training as soon as possible, preferably within 12 months of becoming a 
program manager or team leader. Prior successful completion of the FHWA 
approved comprehensive bridge inspection training is acceptable for 
individuals serving as program managers and team leaders at the time 
this regulation becomes effective.

[[Page 74425]]

County Engineer Qualifications
    The HCRC in Michigan asked if a county engineer would still be 
qualified to administer the county program that is performed by a 
consulting firm and if small consulting firms would be able to adhere 
to these personnel requirements.
    FHWA response: The roles and responsibilities of a program manager 
have been clarified in Sec.  650.307. The qualifications for a program 
manager or team leader apply regardless of the individual's employer, 
i.e., State, county, city, consulting firm, etc.
Comprehensive Bridge Inspection Training Requirement
    The Missouri, Illinois, Maryland, Minnesota, Kansas, and Virginia 
DOTs as well as the AASHTO and the IACE in commenting on Sec.  
650.309(a)(2) do not agree with the requirement for ``comprehensive 
bridge inspection training'' for program managers particularly those 
who are professional engineers. The Massachusetts, South Dakota and 
California DOTs support the requirement for ``comprehensive bridge 
inspection training'' for program managers. The Pennsylvania DOT 
recommended that those currently serving as program managers be 
exempted from the comprehensive training requirement and that 
nonprofessional engineers should not be program managers. The IACE and 
the NACE stated that the ``comprehensive bridge inspection training'' 
would be burdensome on local agency resources. Thirty-six Kansas 
counties, six Kansas cities, and two Kansas consultants commented on 
the proposed Sec.  650.309(a) that local agencies should continue to 
have the option to hire consultants to handle inspections, with the 
professional requirement for the program manager, but not the 
comprehensive training requirement.
    FHWA response: The FHWA's position on comprehensive bridge 
inspection training for program managers has not changed from the 
previously proposed Sec.  650.309(a)(2). We agree with the majority of 
commenters to the ANPRM, who were in favor of establishing training and 
experience requirements for the individual in charge of the bridge 
inspection program. A program manager needs to be thoroughly familiar 
with bridge inspection terminology and techniques along with data 
collection practices and procedures in order to ensure the consistency 
and reliability of the bridge inspection program. Completion of the 
same comprehensive training as required for team leaders is one method 
of addressing the consistency and reliability issues. These issues 
apply regardless of the program manager's experience level or 
professional engineer status.
    We have clarified the roles and responsibilities of the program 
manager in part to address the concerns expressed by several localities 
regarding the burden imposed by the training requirement.
    The current comprehensive training course offered by the National 
Highway Institute (NHI) is not the only option available. A few States 
have developed their own comprehensive training and certification 
programs. In recognition of the need to retain this flexibility, States 
or Federal agencies are permitted to develop their own ``comprehensive 
inspection training'' programs subject to approval by the FHWA. The 
FHWA will use the ``comprehensive bridge inspection training'' 
definition and the ``Bridge Inspector's Reference Manual (BIRM)'' \6\ 
as criteria to apply when reviewing these programs. In addition, the 
NHI course material \7\ is available for those who wish to deliver the 
training using their own resources.
---------------------------------------------------------------------------

    \6\ The Bridge Inspector's Reference Manual (BIRM), 2003, FHWA-
NHI-03-001, may be purchased from the U.S. Government Printing 
Office, Washington, DC and from National Technical Information 
Service, Springfield, Virginia 22161, and may be viewed online at 
the following URL: http://www.fhwa.dot.gov/bridge/bripub.htm.
    \7\ Information regarding NHI training course material can be 
obtained by contacting the FHWA Report Center at the following 
electronic mail address: report.center@fhwa.dot.gov.
---------------------------------------------------------------------------

    Regarding the FHWA approval of comprehensive training proposals, it 
is anticipated that the local FHWA Division office, in consultation 
with the FHWA Headquarters Office of Bridge Technology, will review and 
approve proposals from the States. The FHWA Headquarters Office of 
Bridge Technology will review and approve submittals from Federal 
agencies.
Professional Engineering, Specialty
    The South Dakota and Virginia DOTs and Mr. Todd Hertel commented on 
Sec.  650.309(b)(2)(i) asking what is meant by a bachelor's degree in 
``professional engineering'' and recommended that it should say 
bachelor's degree in engineering.
    FHWA response: The FHWA has reconsidered its position and has 
deleted the word ``professional.''
    The New Jersey and Massachusetts DOTs commented on Sec.  
650.309(b)(2)(i) and noted that the engineering specialty is too vague 
and needs to be specified. The Massachusetts DOT stated that a 
bachelor's degree in civil, structural or related engineering 
discipline that provides a background in structural analysis should be 
included.
    FHWA response: The FHWA's position is that at a minimum, an 
individual with a bachelor's degree in engineering who has successfully 
completed the National Council of Examiners for Engineering and 
Surveying Fundamentals of Engineering examination and obtained two 
years of bridge inspection experience, would qualify as a team leader 
regardless of the specific discipline of the bachelor's degree. 
Although the phrase ``bachelor's degree in engineering'' is not 
specific to the discipline of engineering, individual States or Federal 
agencies can adopt requirements that are more stringent than the 
minimum established by the NBIS.
Engineers Educated at Foreign Universities
    The New Jersey DOT commented on Sec.  650.309(b)(2)(i) and 
indicated that engineers educated at foreign universities would not 
comply with the accreditation board requirement.
    FHWA response: The Accreditation Board for Engineering and 
Technology (ABET) evaluates institutions outside of the United States. 
The evaluation is not the same as accreditation; however, an ABET 
evaluation can result in an assessment of ``substantial equivalency.'' 
The ``substantial equivalency'' determination implies reasonable 
confidence that the foreign institution's program has prepared its 
graduates to begin professional practice at the entry level. 
Information on the substantial equivalent programs, including a list of 
programs that have been assessed by ABET, is available at http://
www.abet.org/international/sub_equ_prg1.html.
    Additionally, in 1989, several countries including the United 
States entered an international agreement known as the ``Washington 
Accord'' which recognizes the substantial equivalency of engineering 
programs accredited by these countries. The accord further recommends 
that graduates of accredited undergraduate programs in any of the 
signatory countries be recognized by the other countries as having met 
the requirements for entry into the practice of engineering. Additional 
information, including a list of signatory countries, may be obtained 
at http://www.washingtonaccord.org.
    In consideration of international engineering education programs, 
the regulation has been revised to reference the substantial 
equivalency options available through the ABET.

[[Page 74426]]

Engineer-in-Training
    Mr. Todd Hertel commented on Sec.  650.309(b)(2)(ii) and wanted to 
know why the engineer-in-training (EIT) is a requirement. The Miami 
County in Kansas commenter agreed with all provisions of Sec.  650.309 
especially the addition of an EIT as a team leader with two years 
experience. The Wyoming DOT and Mr. Jerry Fowler, private citizen, 
stated that the proposed qualifications for ``team leader'' were too 
stringent. The Illinois and Kansas DOTs, the IACE, and the AASHTO noted 
that Sec. Sec.  650.309(b)(1) through 650.309(b)(4) were required for 
``team leaders''; however a team leader only needs to meet one of the 
qualifications, not all. The Maryland DOT stated that professional 
engineer team leaders with five years experience could be 
``grandfathered'' with respect to the comprehensive training 
requirement. The Iowa DOT commented that the requirements of Sec.  
650.309(b) would place more education, training and inspection 
experience requirements onto counties and cities. The Pennsylvania DOT 
agreed with the proposed Sec.  650.309(b); however, it argued that 
States with a rigorous training and certification program for 
inspectors should be allowed to substitute an acceptable combination of 
education, experience and training for the requirements in this 
section.
    FHWA response: The EIT is not a requirement. It is a component of 
one of the options available for qualification as a team leader under 
Sec.  650.309(b). The team leader requirements resulted in confusion 
among several commenters. Accordingly, the FHWA clarified the wording 
under Sec.  650.309(b) and re-ordered the subparagraphs.
    The FHWA's position on comprehensive bridge inspection training for 
team leaders has not changed from the previously proposed Sec.  
650.309(a)(2). We believe that an individual in a team leader position 
needs to be thoroughly familiar with bridge inspection terminology and 
techniques along with data collection practices and procedures 
regardless of the team leader's experience level or professional 
engineer status. With respect to ``grandfathering'' current team 
leaders who are professional engineers but have never completed 
comprehensive bridge inspection training, the expectation is that those 
individuals will aggressively seek to obtain the required training as 
soon as possible, preferably within 12 months of the effective date of 
this regulation. Prior successful completion of the FHWA approved 
comprehensive bridge inspection training is acceptable for individuals 
serving as team leaders at the time this regulation becomes effective.
    As indicated in a previous response, the current comprehensive 
training course offered by the National Highway Institute is not the 
only option available. A few States have developed their own 
comprehensive training and certification programs. In recognition of 
the need to retain this flexibility, States and Federal organizations 
are permitted to develop their own ``comprehensive inspection 
training'' programs subject to approval by the FHWA. The FHWA will use 
the comprehensive bridge inspection training definition and the 
``Bridge Inspector's Reference Manual (BIRM)'' as criteria to apply 
when reviewing these programs. In addition, the National Highway 
Institute course material is available for those who wish to deliver 
the training using their own resources.
    The FHWA acknowledges the Pennsylvania DOT comment, that there are 
acceptable alternative combinations of education, experience and 
training for the requirements of ``team leader.'' Accordingly, we added 
Sec.  650.309(b)(5) to provide another option to qualify as a team 
leader.
Bridge Inspection Experience
    The Iowa DOT and the AASHTO commented on Sec.  650.309(b)(3) as it 
relates to ``bridge inspection experience'' and noted that the term 
``predominant'' used in the definition for this phrase be replaced with 
the word ``substantial.'' Mr. Todd Hertel commented that a ``year's 
experience'' is not defined.
    FHWA response: The FHWA recognizes that there are many factors 
involved in evaluating an individual's bridge inspection experience 
level. We believe that the definition for ``bridge inspection 
experience,'' which includes the statement that ``the predominate 
amount'' of experience be ``bridge inspection,'' adequately addresses 
the intent that a preponderance of the experience for qualification 
should come from other than bridge design, bridge maintenance or bridge 
construction experience.
Experience in the Field of Practice
    The New Jersey DOT commented on Sec.  650.309(b)(4) indicating that 
the regulation should mandate that a team leader with a professional 
engineer license should have experience in the field in which they are 
practicing.
    FHWA position: We believe that the laws governing licensure within 
each State or Federal agency ensure that professional engineers only 
practice engineering in the fields in which they are qualified and 
experienced. The process for obtaining a professional engineer license 
involves a requirement for a minimum number of years of engineering 
experience. It is the State or Federal agency's responsibility to 
ensure that the experience that qualified the individual for 
professional engineer status is relevant to bridge inspection 
activities. In addition, although the regulations do not specify a 
field inspection experience requirement for a team leader who is a 
professional engineer, individual States or Federal agencies can adopt 
requirements that are more stringent than the minimums established by 
the NBIS.
Load Rater Qualifications
    The Missouri, Illinois, South Dakota, Alabama, and Pennsylvania 
DOTs agreed with the requirement in the proposed Sec.  650.309(c). The 
Maryland DOT indicated that the term ``determining'' should be changed 
to ``certifies'' or ``reviews and approves.'' The South Dakota DOT is 
concerned regarding the impact of the South Dakota exemption for State 
government professional engineers on this section. The Kansas DOT 
commented that a ``structural engineer'' might function in some States 
as the ``professional engineer.'' The Illinois DOT and the AASHTO 
provided language addressing the State of Illinois use of ``structural 
engineers'' as a ``professional engineer'' specialty used to perform 
structural evaluations.
    The Virginia DOT did not agree with the proposed language and 
stated that a professional engineer license should not be required to 
fill out a computer data input form. The Pennsylvania DOT commented 
that responsibility for this individual should also include load-
posting evaluations.
    FHWA response: Bridge load rating calculations require engineering 
judgment in determining the safe load-carrying capacity of a bridge and 
arriving at posting and permitting decisions. Given the importance of 
these calculations, the person charged with the overall responsibility 
for load rating bridges should be a professional engineer. The 
licensing laws require that the professional engineer only practice 
engineering in areas where he/she is qualified and experienced. 
Although the discipline of the professional engineer is not specified 
in the regulation, States or Federal organizations may opt to require a 
more specific professional engineer discipline, such as structural 
engineering.

[[Page 74427]]

    In some organizational structures, the overall responsibility for 
load ratings may rest with the program manager. In others, there may be 
several individuals responsible for determining load ratings, in which 
case each would have to be a professional engineer. The intent is not 
to require a professional engineer qualification for individuals who 
simply enter data into load rating computer programs, but rather 
require that the person(s) who provides the necessary engineering 
judgment and reviews and approves the actual load rating result be a 
professional engineer.
    The posting of load restrictions on bridges is based in part on the 
load rating values provided by a professional engineer. As long as a 
professional engineer has accepted the load rating calculation, the 
FHWA does not see a need to require a professional engineer to make the 
posting decision as well. Again, a State or Federal agency may opt to 
require that the person responsible for load posting be a professional 
engineer.
Bridge Inspection Refresher Training
    The Massachusetts DOT and the U.S. Navy commented that they were in 
favor of bridge inspection refresher training. The Pennsylvania DOT 
strongly supports refresher training of inspectors and team leaders 
every two years with exams; however, they recommended that the 
``refresher course'' should be defined in the NBIS. Mr. Michael Magner, 
private citizen, indicated that in order to keep his National Institute 
for Certification in Engineering Technologies (NICET) certification he 
must document continuing education and experience every four years; 
therefore, he agrees with not only continuing training but also 
certification. The Wisconsin DOT does not agree with the proposed Sec.  
650.309(d), however; it believes in the concept of refresher training 
and that it should be left up to the State to determine frequency, 
content, and duration.
    The Missouri DOT does not agree with the proposed Sec.  650.309(d) 
for program managers and opposes the refresher training requirement for 
team leaders; however, it recognizes some merit to refresher training 
if there has been a lapse in conduct of inspections of 2 or more years.
    The Indiana DOT agrees that the intent of refresher training is 
good; however, the costs and logistics involved in executing this 
requirement would place a strain on State resources. The Wyoming DOT 
commented that this refresher training should not be a requirement for 
program managers, but should be required of team leaders as long as the 
training can be performed in-house. The Illinois DOT commented that 
because of the costs associated with refresher training they were 
reluctant to mandate this requirement especially for professional 
engineers.
    The Minnesota DOT noted that the term ``refresher training'' is 
undefined, and as such may be overly burdensome and expensive and 
recommends that it be advisory and not mandatory. The Kansas DOT 
commented that training costs are significant and that they have no 
need for refresher training. The Washington DOT noted that the extent 
of refresher training needs clarification and that those who work full 
time in the inspection arena under an FHWA approved quality assurance 
program be exempted from this requirement.
    The IACE indicated that the refresher-training requirement would be 
a burden on the local agency resources. The NACE thought the refresher 
training provision to be costly for local governments and proposed a 
tiered approach based on bridge type and complexity. They also 
recommended that turning the training development and deployment over 
to the local technical assistance programs (LTAPs) would be a more 
economical approach.
    The Iowa DOT commented that refresher training would place more 
requirements on the counties and cities. The ACRC in Michigan supported 
refresher training, but thought that it should be carefully tailored to 
local needs, and also be relevant, economical and of short duration. 
The AASHTO recommended that the NBIS not mandate refresher training 
every five years for all program managers and team leaders. The 
Virginia DOT asked that the requirement for refresher training for 
program managers be removed.
    FHWA response: The FHWA has reevaluated the refresher training 
requirement. First, we have determined that refresher training would be 
more appropriately addressed as part of quality control (QC) and 
quality assurance (QA) procedures. Accordingly, we have deleted the 
proposed Sec.  650.309(d) and revised Sec.  650.313 to include 
refresher training as part of QC and QA. For additional details 
regarding QC and QA procedures see Sec.  650.313 preamble discussion.
    Second, we recognize there are some differences in inspection 
programs across the nation and the need for flexibility in determining 
the frequency, duration, and to some extent, the content of refresher 
training. Accordingly, we have added a definition of ``bridge 
inspection refresher training'' under Sec.  650.305 that allows for the 
necessary flexibility.
    While the NHI Bridge Inspection Refresher 130053 training course 
\8\ would be acceptable, it is not the only option. States or Federal 
agencies are permitted to develop their own refresher training 
programs. The details of these programs, such as training content, 
frequency, and method of delivery, would be defined in the QA and QC 
procedures that are periodically reviewed by the FHWA under Sec.  
650.313(g).
---------------------------------------------------------------------------

    \8\ Information regarding this particular course of NHI training 
in general can be obtained at the following URL: http//
www.nhi.fhwa.dot.gov.
---------------------------------------------------------------------------

Underwater Diver Bridge Inspection Training
    The Missouri and Massachusetts DOTs agreed with the proposed Sec.  
650.309(e) that requires either the comprehensive bridge inspection 
training or other FHWA approved training for underwater bridge 
inspection divers.
    The Wyoming DOT disagreed with the proposed Sec.  650.309(e) in 
regards to the option of having FHWA approved underwater bridge 
inspection training. The Illinois DOT argued that divers did not need 
this degree of training if a qualified team leader were on site and in 
communication with the divers during underwater inspection. The 
Minnesota, Illinois and Kansas DOT stated that the pool of firms 
meeting this requirement would be reduced. The Maryland DOT suggested 
that the training requirement should be waived for those divers 
certified by a national diving authority, divers who are engineers with 
5 years of experience, and divers who are non engineers with 10 years 
experience with a provision for refresher training every 5 years.
    Thirty-four Kansas counties, eleven Kansas cities, and two Kansas 
consultants commented on the proposed Sec.  650.309(e) that as long as 
team leaders are on site during underwater inspections, the diver does 
not need this training; however, two Kansas counties agreed that divers 
should complete the comprehensive training. The Virginia DOT and the 
AASHTO were not in favor of the proposed Sec.  650.309(e), particularly 
since a qualified team leader must be present during the inspection.
    Collins Engineers noted that the comprehensive course should be 
preceded by 40 hour engineering concepts for bridge engineers course 
for those with little or no practical bridge experience or background 
in bridge technology.

[[Page 74428]]

    FHWA Response: We have renumbered this section from the proposed 
Sec.  650.309(e) to the final Sec.  650.309(d). The FHWA does not 
concur with the commenters who argued that the presence of a team 
leader during the inspection negates the need for comprehensive 
training of the divers. During a typical underwater inspection, the 
divers are not under direct visual observation by the team leader. 
Divers need to be capable of conducting thorough inspections, 
recognizing defects and deterioration, and documenting and describing 
their observations using common terminology and techniques. For this 
reason, divers must complete the comprehensive training or alternate 
underwater diver bridge inspection training. States or Federal agencies 
are allowed to develop their own underwater diver bridge inspection 
training course. To provide additional clarification, a definition of 
``underwater diver bridge inspection training'' has been added to Sec.  
650.305.
    In situations where divers possess little or no experience in 
bridge inspection, training on basic engineering concepts and 
inspection techniques should be considered. The FHWA believes that the 
need for prerequisite training is an issue that must be evaluated on a 
case-by-case basis rather than specified in the regulation.
    Collins Engineers noted that the comprehensive course currently 
offered by NHI does not address diving operations. The U.S. Navy and 
the ADCI recommended including reference to the OSHA regulations 
regarding diving operations within the NBIS.
    FHWA response: The FHWA believes that safe diving practices as 
prescribed by the OSHA regulations should be employed during all bridge 
inspection diving, but we do not reference them. We believe that a 
reference would unnecessarily complicate this regulation. There are a 
number of OSHA regulations that pertain not only to underwater 
inspection but also above-water inspections, and any omission in this 
standard does not relieve diving inspectors of the requirement to 
follow OSHA regulations.
Training Certification
    The Pennsylvania DOT commented on Sec.  650.309 indicating that 
training needs to be coupled with certification tests. Furthermore, the 
Pennsylvania DOT stated that inspectors who have demonstrated prior 
knowledge through engineering degree or Fundamentals of Engineering 
exam should be provided an opportunity to waive training requirements 
via certification testing.
    FHWA response: The regulation requires successful completion of 
comprehensive bridge inspection training. The FHWA has elected to leave 
the definition of ``successful completion'' to the States or Federal 
agencies. In some States, minimum passing grades on final examinations 
have been specified and the FHWA supports this concept.
    We do not allow certification tests to substitute for comprehensive 
bridge inspection training. The FHWA believes that successful 
completion of the comprehensive bridge inspection training is 
appropriate regardless of an individual's education, experience, or 
professional engineer status.

Section 650.311 Inspection Frequency

Routine Inspections
    The Massachusetts DOT supported clarification of the inspection 
frequency. The Kansas, Tennessee, Michigan and Colorado DOTs as well as 
the AASHTO, the ACRC in Michigan and the NACE recommended that more 
flexibility should be given to adjust to unexpected weather events, or 
to permanently move a bridge or group of bridges to a more logical 
inspection period. The AASHTO recommended that routine inspections be 
performed ``within a calendar year and later or within 2 months 
later.'' The NACE argued that a 90-day grace period would allow for 
efficient scheduling of inspections and personnel. The ACRC in Michigan 
and Arkansas DOT pointed out that the NPRM preamble discussed the 30-
day grace period; however, the proposed regulation did not address 
this. The Arkansas DOT recommended a 45-day grace period.
    FHWA response: The FHWA believes that the inspection frequency 
should not exceed 24 months. We recognize that severe weather, concern 
for bridge inspector safety, concern for inspection quality, the need 
to optimize scheduling with other bridges, or other unique situations 
may be cause to adjust the scheduled inspection date. The adjusted date 
should not extend more than 30 days beyond the scheduled inspection 
date, and subsequent inspections should adhere to the previously 
established interval.
    Establishment of a formal inspection frequency grace period may 
have the unintended consequence of extending the inspection interval 
beyond twenty-four months. The twenty-four month interval has been used 
as the standard since the inception of the national bridge inspection 
program. Concern for safety makes us reluctant to take actions that may 
make bridges less safe, therefore we have not established a grace 
period.
Routine Inspections Less Than 24 Months
    The Michigan DOT commented on Sec.  650.311(a)(2) that the program 
manager should put guidelines in place, but the ultimate responsibility 
for setting intervals less than 24-months should reside with the on-
site inspector.
    FHWA response: The FHWA believes criteria to determine the level 
and frequency of less than 24 month inspections should be established 
and implemented according to statewide or Federal agency wide 
procedures to ensure consistency throughout an entire State or Federal 
agency program. The term program manager was removed from this section 
to provide flexibility in how this provision is implemented.
Routine Inspections Not To Exceed 48 Months
    The HCRC in Michigan in commenting on Sec.  650.311(a)(3) applauded 
the opportunity for inspecting certain bridge types in up to 48-month 
intervals. The South Dakota DOT commented that they have been using the 
48-month inspection frequency for certain structures and support this 
concept. The IACE commented that the proposed provision could be 
interpreted to prohibit local agencies from inspecting at greater than 
24-month intervals. The Michigan DOT noted that the program should 
provide guidelines to let the States know factors being considered 
during the application process to lengthen the inspection interval 
otherwise each State might be treated differently depending on the 
local FHWA Division Office. The NACE and the ACRC in Michigan wanted to 
know if the 48-month option could be extended to local agency bridges. 
Thirty-seven Kansas counties, seven Kansas cities, and one Kansas 
consultant commented to the proposed Sec.  650.311(a)(3) that the local 
agency should govern when bridges need inspection more than every 24 
months.
    FHWA response: In guidance published on September 16, 1988, the 
FHWA established consistent criteria for extending an inspection 
interval to 48 months, but maintains that approval be administered from 
the FHWA Office of Bridge Technology in order to maintain consistency 
across States and Federal agencies. Guidance on the 48-month inspection 
interval criteria can be found in the FHWA Technical Advisory 
T5140.21.\9\ The FHWA acknowledges

[[Page 74429]]

that further study is needed before consideration could be given to 
automatically allow certain bridges to be placed on a 48-month cycle. 
County bridges are also eligible; however, the State must support and 
submit the request for the extended inspection cycle to the FHWA for 
approval. The FHWA has removed the reference to State or Federal 
agencies in the proposed Sec.  650.311(a)(3) to avoid confusion.
---------------------------------------------------------------------------

    \9\ This document provides guidance for implementing the changes 
contained in the 1988 revision to the NBIS and is available at the 
following URL: http://www.fhwa.dot.gov/legsregs/directives/techadvs/
t514021.htm.
---------------------------------------------------------------------------

Underwater Inspections Less Than 60 Months
    The Michigan DOT commented on Sec.  650.311(b)(2) that the ultimate 
responsibility for setting interval less than 60 months should reside 
with the on-site inspector.
    FHWA response: As with the routine inspection interval discussed 
earlier, the FHWA believes criteria to determine the level and 
frequency of less than 60-month inspections should be established and 
implemented according to statewide or Federal agency wide procedures to 
ensure consistency throughout an entire State or Federal agency 
program.
Underwater Inspections Not To Exceed 72 Months
    The Missouri DOT commented on Sec.  650.311(b)(3) and agreed that 
they would like to see a 72-month interval. The New Jersey DOT argued 
that this was excessive and should remain at the 60-month interval. The 
Indiana DOT agreed with the change, but would like the maximum moved 
out to 120 months. The IACE commented that the proposed provision could 
be interpreted to restrict local agencies from inspecting at greater 
than 60-month intervals and that there is inconsistent treatment of 
local agencies. The Iowa DOT thought the proposed provisions too 
restrictive and that flexibility be given to bridge owners in the range 
of 6 to 10 years for various reasons. The U.S. Navy commented that it 
was not in favor of extending the underwater inspection interval beyond 
60 months and currently inspect on a 48-month interval to coincide with 
successive biennial inspections.
    FHWA response: The FHWA believes that underwater inspection 
intervals for certain bridges can be extended to 72 months, with FHWA 
approval. The FHWA believes that applying engineering judgment and 
approval on a case-by-case basis to bridges with little or no change 
from inspection cycle to cycle in benign environments provides an 
adequate margin of safety to the motoring public. Industry standards, 
such as those provided by the American Society of Civil Engineers 
(ASCE) in its ``Underwater Investigations Standard Practice Manual, 
2001,'' \10\ promote a degree of latitude in the maximum interval 
between routine underwater inspections up to 6 years. The guidance 
provided is tied to material, environment, scour and condition rating 
from previous inspections. While we are including an additional year 
beyond the current 60-month underwater inspection interval, we are 
taking into consideration these same factors of material composition 
(timber, steel, concrete, protected or unprotected steel or timber, 
composite), environment (benign or aggressive), scour (susceptibility 
to scour) and previous condition rating (excellent to failed). Based on 
our assessment, again on a case-by-case basis, the FHWA may approve 
requests not to exceed 72 months. This authorization can be rescinded 
at any time owing to structural degradation, adverse change in 
environment and presence of localized bridge scour.
---------------------------------------------------------------------------

    \10\ This document may be obtained from ASCE, 1801 Alexander 
Bell Drive, Reston, Virginia 20191-4400.
---------------------------------------------------------------------------

    An example of a situation that may warrant an extended interval may 
include a highway bridge supported by concrete piles with no 
degradation over a lined irrigation canal carrying fresh water. An 
example of a situation that would not warrant approval would be a 
highway bridge over a high flow saltwater or brackish water 
environment, with structural piles showing degradation and subject to 
localized scour. Four-year frequencies may be used, if desired, but 
retention of the 60-month frequencies allows more flexibility to 
program managers. The FHWA does not believe there is justification at 
this time to warrant extended intervals beyond 72 months, but 
acknowledges that further study in this area is needed. The FHWA has 
removed the reference to State or Federal agencies in the proposed 
Sec.  650.311(b)(3) to avoid confusion.
Fracture Critical Member Inspections
    The Massachusetts DOT in commenting on Sec.  650.311(c) supports 
clarification of the inspection frequency being proposed, specifically 
with regard to fracture critical (FC) inspections. The Texas DOT 
commented on Sec.  650.311(c)(1) and indicated that preliminary 
estimates of having a ``not to exceed 24 months'' interval would 
increase statewide inspection costs by $10 million per year, that the 
program manager should be allowed to set that interval based on sound 
engineering judgment and FHWA approval and the maximum approved 
frequency should not exceed 60 months. The Texas DOT also commented 
that routine and underwater inspection frequency can be extended, and 
questioned why this does not apply to fracture critical inspection 
frequency.
    The Illinois DOT noted that the proposed Sec.  650.311(c)(1) 
establishes a 24-month maximum frequency for fracture critical members 
and recommended a 24-month interval that allows States to have the 
latitude to establish criteria for inspecting bridges at intervals up 
to 60 months. The Minnesota DOT recommended that ``routine inspection 
of FCMs shall be at intervals not to exceed 24 months.'' The Kansas and 
Oregon DOTs argued that the 24-month interval was excessive and the 
Kansas, Wyoming, and New Mexico DOTs as well as the AASHTO recommended 
that States be allowed to establish intervals up to 60 months. The New 
Mexico DOT also urged that the discretion for an extension be left with 
the State bridge engineer or designee and not with the program manager.
    The California DOT requested clarification regarding whether the 
proposed language applied to ``fracture critical bridges'' or to 
``bridges with fracture critical elements.'' The Wyoming and Kansas 
DOTs as well as the AASHTO recommended deletion of the proposed Sec.  
650.311(c)(3). The Washington DOT wanted clarification as to the 
nondestructive evaluation (NDE) methods to be used on FCMs.
    FHWA response: The inspection frequency for fracture critical 
bridges was first defined in the ``Recording and Coding Guide for the 
Structure Inventory and Appraisal of the Nation's Bridges.'' \11\ The 
FHWA continues to believe that all FCMs or member components be given, 
at a minimum, a hands-on inspection as defined in Sec.  650.305 at 
intervals not to exceed 24 months. The FHWA recognizes that the 
interval for use of NDE and other specialized techniques may be greater 
than 24 months. The FHWA also believes that some FCMs or member 
components should be inspected at more frequent intervals, and these

[[Page 74430]]

inspections may require NDE or other specialized techniques.
---------------------------------------------------------------------------

    \11\ The ``Recording and Coding Guide for Structure Inventory 
and Appraisal of the Nation's Bridges,'' December 1995, Report No. 
FHWA-PD-96-001, is available electronically at the following URL: 
http://www.fhwa.dot.gov//bridge/mtguide.doc and may be inspected and 
copied as prescribed in 49 CFR part 7.
---------------------------------------------------------------------------

FCM Inspections Less Than 24 Months
    The Michigan DOT commented on Sec.  650.311(c)(2) and stated that 
the ultimate responsibility for setting intervals less than 24 months 
should reside with the on-site inspector.
    FHWA response: As with other inspection intervals discussed above, 
criteria to determine the level and frequency of less than 24 month 
inspections should be established and implemented according to 
statewide or Federal agency wide procedures to ensure consistency 
throughout an entire State or Federal agency program.
Damage, In-Depth and Special Inspections
    The Missouri and Minnesota DOTs commented on Sec.  650.311(d) and 
agreed that the program manager should be provided the discretion to 
determine the level and frequency of damage, in-depth and special 
inspections. The Michigan DOT argued that Sec.  650.311(d) takes away 
all responsibility from the inspector in the field and places it in the 
hands of a person who has not likely to have seen the specific bridge.
    FHWA response: The FHWA believes that although input from a team 
leader is an important consideration, the ultimate decision should rest 
with the program manager in order to ensure consistency throughout an 
entire State or Federal agency program.
National Bridge Inventory Item Numbers
    The Indiana DOT noted that proposed Sec.  650.311 does not include 
any reference to NBI item number 92C,\12\ other special detail 
inspections and asked if it is covered by Sec.  650.311(d) and whether 
the inspection frequencies are to be determined by the program manager.
---------------------------------------------------------------------------

    \12\ National Bridge Inventory ``item number 92'' denotes 
critical features that need special inspections or special emphasis 
during inspections and the designated inspection interval. 
Specifically item 92C addresses ``other special inspection.''
---------------------------------------------------------------------------

    FHWA response: NBI item number 92C, other special inspection, is 
addressed in Sec.  650.311 (d) Damage, in-depth and special inspection. 
Definition for special inspection is covered in Sec.  650.305. The 
inspection frequency is established by the program manager.
Section 650.313 Inspection Procedures
    The Oregon DOT stated that the requirements of Sec.  650.313 were 
very reasonable.
    The Michigan DOT stated that Sec.  650.313(a) contains conflicts 
with the AASHTO Manual that must be resolved.
    FHWA response: The NBIS take precedence over the AASHTO Manual. The 
AASHTO Manual has excellent guidance that should be followed whenever 
it is not in conflict with the requirements of the NBIS.
On-Site Team Leader
    The Massachusetts and South Dakota DOTs supported the proposed 
Sec.  650.313(b). The Maryland, Kansas, and Michigan DOTs, as well as 
the AASHTO, do not support the requirement for having ``team leader'' 
on site at all times during inspection. The Tennessee DOT had questions 
regarding having a designated person act as ``team leader'' when the 
team leader is unavailable. Thirty-seven Kansas counties, seven Kansas 
cities, one Kansas consultant commented on the proposed Sec.  
650.313(b) and stated that there are too many structures to require the 
``team leader'' at every inspection and that this requirement will 
likely increase local agency costs which would deplete funding 
available for bridge replacement and rehabilitation. The HCRC in 
Michigan commented on Sec.  650.313(b) and asked whether this new 
requirement would mean that two people will have to perform inspections 
and, if so then there would be a costly increase for counties 
performing bridge inspections.
    FHWA response: The requirement to have the team leader on site 
during the inspection is not new. However, the language requiring this 
was clarified in this section because the FHWA agrees there has been 
some misinterpretation of the NBIS in the past. The qualifications for 
team leader were established to ensure that those conducting the 
inspections meet specific minimum standards, not to establish 
qualifications of the supervisor of those who perform the inspection. 
This requirement does not mandate that two people are required to 
conduct an inspection. However, if only one person is conducting an 
inspection, that person must meet the qualifications of a team leader, 
as defined in the NBIS. Even though there is no requirement to have a 
minimum of 2 people on an inspection team, the FHWA highly recommends 
at least 2 people be present to ensure the safety of the inspectors, to 
improve the quality of the inspection data, and to provide 
opportunities to train new inspectors.
Load Rating and Posting
    The Wyoming DOT commented on Sec.  650.313(c) and stated that the 
new the AASHTO, Manual for load and resistance factor rating (LRFR) of 
Highway Bridges \13\ could change some of this regulatory language if 
adopted by the AASHTO.
---------------------------------------------------------------------------

    \13\ The AASHTO 2003, Manual for Condition Evaluation and LRFR 
of Highway Bridges may be obtained upon payment in advance by 
writing to the American Association of State Highway and 
Transportation Officials, 444 N. Capitol Street, NW., Suite 249, 
Washington, DC 20001or it may be ordered at the following URL: 
http://www.aashto.org/aashto/home.nsf/FrontPage.
---------------------------------------------------------------------------

    The Illinois DOT argued that the requirement to post bridges that 
are unable to carry routine permit loads not be applied to all 
structures under local agency jurisdiction, only those on local 
highways that are designated truck route system by the State for 
routine permit loads.
    FHWA response: The FHWA agrees that the AASHTO, Manual for 
Condition Evaluation and LRFR of Highway Bridges uses new terminology. 
The phrase, ``or equivalent rating factor'' was included in the 
requirement to account for the differences. The FHWA also agrees that 
bridges under local jurisdiction on roads where unrestricted permit 
loads are not allowed, need not be posted for the permit loads. The 
FHWA believes the language in the requirement is consistent with that 
interpretation, since permit loads would be considered to be restricted 
from using those bridges. The FHWA agrees that bridge owners may post 
bridges for less than the operating load level, and the FHWA believes 
this final rule allows for that possibility.
    When restricting routine or continuous permit loads from crossing 
specific bridges, States or Federal agencies may elect to erect posting 
signs or to issue restrictions to the permit holders to keep them from 
traveling specific routes with permit loads capacity problems. To 
account for different methods of controlling access for permit 
vehicles, the phrase, ``Post or restrict'' was added to Sec.  
650.313(c).
Bridge Files
    The Wyoming DOT commented on Sec.  650.313(d) and indicated that 
maintaining inspection records for the life of the bridge, while ideal, 
may not be realistic or beneficial in all cases and therefore 
recommended that this requirement be deleted. The Indiana DOT pointed 
out the problems associated with availability and storage of bridge 
data and that maintaining such files would be labor intensive. The 
Michigan DOT indicated that records no longer relevant should be purged 
from the files and recommended that Sec.  650.311(d) be modified to 
allow

[[Page 74431]]

agencies to purge files. The Minnesota DOT noted that tracking ``any 
action taken'' would be very laborious and recommended that Sec.  
650.311(d) be changed to reflect that only ``action(s) taken pursuant 
to the critical findings'' be tracked. The Missouri, New Jersey and 
Michigan DOTs commented that ``standard forms'' or report documentation 
is somewhat confusing and can vary from State to State. The New Jersey 
DOT wants clarification whether electronic as well as paper documents 
would be included in the ``bridge file.'' The Miami County in Kansas 
noted that the recording and coding guide format is appropriate for 
most bridge data reporting.
    FHWA response: The FHWA agrees with the commenters that maintaining 
bridge records could be misunderstood to apply to all data, even though 
it may not be relevant or necessary to properly assess the current 
condition. The language was revised to state the minimum requirement is 
to maintain data that is relevant. The determination of relevant data 
is made by the program manager following guidance contained in the 
AASHTO Manual. We have revised the wording of Sec.  650.313(d) 
accordingly. The FHWA agrees that ``standard forms'' is not specific, 
but it does indicate that for a given State or Federal agency, the 
forms should be consistent to facilitate recording and interpretation 
of the data. The wording of Sec.  650.313(d) has been revised 
accordingly. The FHWA agrees that records may be maintained in paper or 
electronic versions, or both. The NBIS does not specify or eliminate 
either method.
Bridge Lists
    The Wyoming DOT commented on Sec.  650.313(e) and argued that the 
agency, not the program manager, should be responsible for identifying 
and maintaining bridge lists. Wyoming DOT urged that this provision 
should be deleted. The Massachusetts DOT supports the requirement for 
maintaining lists and does so with relative ease using a computerized 
database. The Illinois DOT, the IACE, and the AASHTO stated that the 
requirement to list bridges ``vulnerable to seismic damage'' should not 
be included in the NBIS. The Kansas DOT sees no benefit in keeping 
bridge lists assuming data is readily available. The Washington DOT 
seeks clarification as to what qualifies a bridge as ``seismically 
vulnerable.'' The Michigan DOT viewed the bridge list requirement for 
multiple written documents and or plans for nearly every bridge in the 
inventory as an overwhelming work burden for State DOTs.
    FHWA response: The FHWA agrees with the commenters that the program 
manager may not be the designated individual who actually identifies 
bridges in specific categories. However, the FHWA believes the program 
manager has overall responsibility to see that such work is done. The 
language was revised to eliminate any specific reference to the person 
who identifies the bridges. The FHWA also agrees that maintaining a 
paper list is not necessarily the only way this requirement can be met. 
Computerized data base lists or simply an identifier in the State's 
inventory would satisfy the requirement. However, it is necessary to 
identify bridges in at least the specific categories listed so their 
unique inspection requirements and potential needs can be assessed 
appropriately.
    The proposed requirement to identify and evaluate bridges in high 
seismic risk areas has been removed. We believe that this is an 
important consideration for bridge safety, best addressed through a 
comprehensive evaluation of seismic risk through a bridge management 
program. The FHWA has previously advised States to identify bridges 
vulnerable to seismic damage, based on a State's site specific 
assessment.
Fracture Critical Bridges
    The Missouri, Illinois, Minnesota, Kansas and Wyoming DOTs as well 
as the AASHTO commented on Sec.  650.313(f) and recommended that it 
should be deleted. The New Jersey DOT indicated that an electronic 
record of such bridges would meet this requirement. The Texas DOT 
commented that generating an ``action plan'' would not be an efficient 
use of resources, would not add any benefit and may contain redundant 
information. The Massachusetts, California and Pennsylvania DOTs 
supported this section. The Maryland DOT recommended that in lieu of 
Sec.  650.313(f), we should require States to follow procedures 
described in the FHWA's ``Inspection of Fracture Critical Bridge 
Members.'' \14\ The Michigan DOT viewed the bridge list requirement for 
multiple written documents and or plans for nearly every bridge in the 
inventory as an overwhelming work burden for State DOTs. The Oklahoma 
DOT recommended adding a waiver to Sec.  650.313(f) for bridges with an 
average daily traffic (ADT) less than 500. The Pennsylvania DOT 
recommended the addition of a fracture critical (FC) indicator to the 
NBI to identify FC bridges.
---------------------------------------------------------------------------

    \14\ Inspection of Fracture Critical Bridge Members, Report No. 
FHWA-IP-86-26 is available through the National Technical 
Information Service, Springfield, Virginia 22161 or it may be 
ordered online at the following URL: http://www.ntis.gov.
---------------------------------------------------------------------------

    FHWA response: The FHWA did not intend the proposed language for an 
``inspection plan'' to be substantially different than the current 
rule, which requires identification, description, frequency and 
procedures to be established for fracture critical members (FCMs). 
Those items essentially would constitute the ``plan.'' The FCM 
inspections should be done in accordance with FHWA-IP-86-26, 
``Inspection of Fracture Critical Bridge Members.'' Therefore the 
reference to a plan has been eliminated and language similar to the 
existing rule has been adopted. The features of the FCM inspections can 
be shown in a listing, on the inspection records, or in an electronic 
database. The proposed Sec.  650.313(f) has been redesignated as Sec.  
650.313(e)(1).
Underwater Inspections
    The Missouri, Wyoming, Illinois, Minnesota and Kansas DOTs as well 
as the AASHTO stated that Sec.  650.313(g) should be deleted. The New 
Jersey DOT indicated that an electronic record of such bridges would 
meet this requirement, but stated that it is unclear. The Texas DOT 
commented that generating an action plan would not be an efficient use 
of resources, not add any benefit and may contain redundant 
information. The Massachusetts and California DOTs indicated support 
for this section. The Maryland DOT recommended that in lieu of Sec.  
650.313(g) the FHWA should require States to follow procedures 
described in the FHWA's Underwater Inspection of Bridges report.\15\ 
The Alabama DOT argued that this requirement would pose a significant 
burden on those States with a large population of bridges requiring 
underwater inspections, and be unnecessary, wasteful, and a duplicative 
effort. The Michigan DOT viewed the bridge list requirement for 
multiple written documents and or plans for nearly every bridge in the 
inventory as an overwhelming burden for State DOTs.
---------------------------------------------------------------------------

    \15\ Underwater Inspection of Bridges, November 1989, Report No. 
FHWA-DP-80-1, provides guidelines for underwater bridge inspection. 
This document is available through the National Technical 
Information Service, Springfield, VA 22161.
---------------------------------------------------------------------------

    FHWA response: The FHWA did not intend the proposed language for an 
``inspection plan'' to be substantially different from the current 
rule, which requires identification, description, frequency and 
procedures to be

[[Page 74432]]

established for members requiring underwater inspection. Those items 
essentially would constitute the ``plan.'' Therefore the reference to a 
plan has been eliminated and language similar to the existing rule has 
been adopted. Those four features of the underwater inspections can be 
shown in a listing, on the inspection records, or in an electronic 
database. The proposed Sec.  650.313(g) has been redesignated as Sec.  
650.313(e)(2).
Scour Critical Bridges
    The Missouri DOT commented on Sec.  650.313(h) and recommended that 
language regarding inspecting bridges after a ``major flood'' event 
should be changed to ``consideration should be given to inspecting 
scour critical bridges after a major flood event.'' The Missouri and 
Colorado DOTs also noted that the ``major flood event'' guidance would 
be addressed in the ``action plan.''
    The Texas DOT commented that generating an action plan would not be 
an efficient use of resources and, instead, proposed that generic 
guidelines be developed outlining appropriate evaluation milestones as 
well as monitoring criteria. The Indiana DOT indicated that at the 
State level there are scour plans; however, at the county level 
additional resources would be needed to develop scour plans. The 
Indiana, Wyoming, Illinois, Minnesota and Kansas DOTs as well as the 
AASHTO recommended deleting Sec.  650.313(h). The Massachusetts DOT 
recommended that the requirement be changed to establishing a list of 
bridges that are vulnerable to events and developing monitoring and or 
inspection plans for such structures in the wake of a scour event. The 
South Dakota DOT asked for clarification of a ``major flood event.'' 
The Washington DOT indicated that its inspection of bridges after major 
flood events are performed by maintenance staff and asked if this 
section required that a team leader perform these inspections. The 
California DOT indicated support for this section.
    The Michigan DOT viewed the bridge list requirement for multiple 
written documents and or plans for nearly every bridge in the inventory 
as an overwhelming burden on State DOTs. Thirty-seven Kansas counties, 
seven Kansas cities, one Kansas consultant commented on the proposed 
Sec.  650.313(h) and indicated that the requirement to prepare an 
action plan is not justified, and that the local agency should decide 
proper actions based on degree of risk. The Virginia DOT understood the 
need to have lists of scour critical bridges to identify structures 
that needed inspection after a flood event; but did not agree that the 
NBIS covers retrofit guidelines.
    FHWA response: Scour related deficiencies are the leading cause of 
serious bridge failures and closings. The requirements for scour 
evaluation and action plans are consistent with the existing 
requirement for evaluation of underwater members, with a renewed 
emphasis. The FHWA does agree with the commenters that the action plans 
for some bridges may be very similar and that monitoring and assessment 
after flood events may be done using different levels of effort 
depending on the degree of risk. The wording of this section was 
changed to reflect the need for some flexibility in the application of 
the action plans. Monitoring after flood events is described in the 
FHWA guidance manuals, ``Evaluating Scour at Bridges'' \16\ and 
``Bridge Scour and Stream Instability.'' \17\ The proposed Sec.  
650.313(h) has been redesignated as Sec.  650.313(e)(3).
---------------------------------------------------------------------------

    \16\ Evaluating Scour at Bridges FHWA-NHI-01-001 (HEC-18) 
presents the state of knowledge and practice for the design, 
evaluation and inspection of bridges for scour. This document is 
available through the National Technical Information Service, 
Springfield, VA 22161.
    \17\ Bridge Scour and Stream Instability FHWA-NHI-01-003 (HEC-
23) provides guidelines for identifying stream instability problems 
at highway stream crossings. This document is available through the 
National Technical Information Service, Springfield, VA 22161.
---------------------------------------------------------------------------

Seismic Vulnerability
    The Missouri, Wyoming, Illinois, Minnesota, Kansas and Pennsylvania 
DOTs, the IACE and the AASHTO commented on Sec.  650.313(i) and 
recommended that it should be deleted. The Colorado DOT urged that 
Sec.  650.313(i) should be either deleted or rewritten to better define 
criteria for determining ``seismic vulnerability'' and expectation for 
the ``action plan.'' The New Jersey DOT commented that it does not 
believe that ``the benefit of such a program in New Jersey would be 
consistent with the costs to develop it considering the historical lack 
of damage from seismic events.'' The Indiana DOT indicated the proposed 
language is too vague, leaves too much for interpretation, and that 
additional resources would be needed at the county level.
    The Massachusetts DOT recommended establishing a list of bridges 
that are vulnerable to events and developing monitoring and or 
inspection plans for such structures in the wake of a seismic event. 
The Illinois DOT and the IACE argued that this provision was an 
``unfunded mandate.'' The Washington DOT wanted clarification as to 
what qualifies a bridge as ``seismically vulnerable.'' The California 
DOT supported this section. The Michigan DOT viewed this requirement 
for multiple written documents and or plans for nearly every bridge in 
the inventory as an overwhelming burden for State DOTs. Thirty-seven 
Kansas counties, seven Kansas cities, one Kansas consultant disagreed 
with Sec.  650.313(i) because they believe the requirement to prepare 
an action plan is not justified, and that it should be a local agency 
decision based on degree of risk. The Virginia DOT understood the need 
to have lists of seismically vulnerable bridges to identify structures 
that needed inspection after a significant seismic event; however, it 
does not agree that the NBIS covers retrofit guidelines. The 
Pennsylvania DOT noted that the term ``seismic vulnerability'' was not 
defined in Sec.  650.305 and that the inspection requirement in Sec.  
650.313(i) is an open ended assignment that could be very costly, 
particularly in States with low seismic event probabilities.
    FHWA response: The proposed requirement has been eliminated. 
Although we believe that this is an important consideration for bridge 
safety, we believe that it is best addressed by a comprehensive 
evaluation of seismic risk through a bridge management process.
Complex Bridges
    The Missouri DOT opposed the proposed Sec.  650.313(j) because it 
believes States have sufficient knowledge to recognize inspection needs 
for unusual bridges or features. The Wyoming and Minnesota DOTs and the 
AASHTO recommended that this provision should be deleted. The Texas DOT 
indicated that generating an ``action plan'' for ``complex'' bridges is 
not an efficient use of resources, would not add benefit and would 
likely contain redundant information. The Washington DOT commented that 
it needed further clarification as to ``inspection and training 
requirements.'' The California DOT is unclear as to the level of effort 
needed to comply with preparation of the proposed complex bridge 
``inspection plan.''
    FHWA response: The FHWA agrees that the content of the plan was not 
clear in the proposed requirement. The language was changed to specify 
that the minimum requirement is to establish specialized inspection 
needs, level of effort and additional inspector training and/or 
experience. These procedures are applied to the unique features of 
complex bridges that would not normally be covered in a routine

[[Page 74433]]

inspection. We also clarified the definition for complex bridges. The 
proposed Sec.  650.313(j) has been redesignated as Sec.  650.313(f).
Quality Control and Quality Assurance
    The Missouri DOT, regarding the proposed Sec.  650.313(k), is 
opposed to the requirement of a formal QC and QA program. The Missouri 
DOT believes it would be redundant and not sufficiently enhance public 
safety compared to efforts expended to provide such a program. The 
Indiana DOT argued that they would need additional resources to comply 
with this requirement and also expressed concern over the subjectivity 
of the required FHWA approval. The Wyoming DOT urged that this 
provision should be deleted. The Massachusetts, South Dakota, 
California and Pennsylvania DOTs supported this provision.
    The Illinois DOT was concerned about the FHWA having a more active 
role. The South Dakota DOT supports this concept, but believes that the 
program should be left up to the States.
    The Minnesota DOT recommended rewording this section to say, 
``submit documentation of the QA program to the FHWA for review and 
comment.'' Additionally, the Minnesota DOT suggested that if QC is 
retained both QA and QC should be defined and the difference between 
them explained.
    The Kansas DOT wanted to improve the consistency of NBI data by 
having the FHWA improve the ``Edit/Update program'' and distribute the 
program for general use. The Washington DOT asked for clarification as 
to the level of effort intended for submittal of QC and QA program 
documentation to the FHWA and requested criteria for program 
expectations.
    The Michigan DOT recommended that the FHWA provide guidelines to 
the States outlining the evaluation factors used to grant approval, and 
that the FHWA should provide a standard for national uniformity. The 
Iowa DOT and the AASHTO recommended that the requirement to review load 
calculations be eliminated.
    The ACRC in Michigan noted that in instances where inspection 
responsibilities are delegated to local agencies, the required QC and 
QA program should be developed in cooperation with the local agencies. 
Thirty-seven Kansas counties, seven Kansas cities, one Kansas 
consultant commented on Sec.  650.313(k) and the majority indicated 
that they disagreed with the provision because the current limited 
oversight is working well. They recommended that the FHWA develop and 
distribute software to collect QA and QC data to encourage consistency 
and uniformity nationwide. The Virginia DOT commented that the 
documentation of findings for the QC and QA program should be available 
for review and comment by the FHWA but should not be subject to FHWA 
approval.
    FHWA response: We have added definitions for QC and QA that are 
consistent with the AASHTO Manual. An FHWA study, ``Reliability of 
Visual Inspection for Highway Bridges,'' found wide variations in the 
condition assessment of typical highway bridges by experienced and 
trained inspectors from a variety of States. The study concludes that 
formal quality assurance is needed to obtain better uniformity in 
assigning condition codes. The FHWA believes that using computer 
software tools to check data is an important part of obtaining data 
accuracy and consistency, but is not adequate alone as a QC and QA 
procedure. The FHWA believes many States have well-developed and 
effective QC and QA procedures, but others have very minimal programs. 
This requirement will help States or Federal agencies develop more 
uniform systems that will lead toward more accurate national data. 
Example QC and QA procedures from other States are available at URL: 
http://www.fhwa.dot.gov/bridge/index.htm. for review and consideration.
    The FHWA agrees with commenters that methods of review of reports 
and computations may vary and the precise method should be done 
according to normal State or Federal agency procedures. The FHWA agrees 
that it is not necessary to include in the rule a specific requirement 
to submit the QC and QA procedure to the FHWA for approval. During NBIS 
program reviews \18\ the FHWA will examine QC and QA procedures. The 
proposed Sec.  650.313(k) has been redesignated as Sec.  650.313(g).
---------------------------------------------------------------------------

    \18\ The NBIS program reviews are routinely done by the FHWA on 
an annual basis to determine compliance with the NBIS. This program 
is delineated in a June 22, 2001 memorandum that can be found at the 
following URL: http://www.fhwa.dot.gov/bridge/index.htm.
---------------------------------------------------------------------------

Follow-Up on Critical Findings
    The Wyoming, Iowa, Illinois and Pennsylvania DOTs and the AASHTO 
commented on Sec.  650.313(l) and recommended that this provision be 
deleted. The Missouri DOT had no objections on this provision, but 
recommended annual reporting. The Texas and Pennsylvania DOTs sought 
clarification as to how often this information should be provided and 
recommended that the FHWA define the term ``critical finding.'' The 
Maryland DOT suggested a definition for ``critical finding'' as ``any 
condition that affects the safe passage of any legal vehicle.'' The 
South Dakota DOT supported this provision and also recommended that the 
States be allowed to set their own definition of ``critical finding.'' 
The Washington DOT requested more details on how States are to report 
the information to the FHWA. The IACE did not see a benefit to 
requiring such information be reported since it would require 
additional resources to generate the information. The California DOT 
supported the proposed provision on the basis that its current FHWA 
reporting procedure be used. The Michigan DOT indicated that ``critical 
findings'' is not defined; frequency of reporting is not delineated and 
workload would double when this provision is applied to local agencies. 
The Colorado DOT recommended the provision should be deleted and the 
subject left to the language contained in Sec.  650.313(d).
    Thirty-seven Kansas counties, seven Kansas cities, one Kansas 
consultant commented on the proposed Sec.  650.313(l) and the majority 
disagreed with the provision because the cost of establishing a 
statewide procedure to address critical findings is not justified. The 
Oklahoma DOT suggested revising this section to require the program 
manager be responsible for determining a procedure to address critical 
findings and that the FHWA should define the term ``program manager.''
    FHWA response: The broad definition for ``critical finding'' was 
added to allow flexibility to establish, in cooperation with the FHWA, 
criteria and reporting procedures specific to a particular State or 
Federal agency. The FHWA noted that many States already have 
established procedures that are working well, and the rule was not 
meant to require significant changes in those procedures. ``Notify the 
FHWA of actions taken to assure public safety'' was changed to 
``Periodically notify the FHWA of the actions taken to resolve or 
monitor critical findings.'' The period between notifications is to be 
agreed upon between the FHWA and the State or Federal agency. The 
proposed Sec.  650.313(l) has been redesignated as Sec.  650.313(h).

Section 650.315 Inventory

Prepare and Maintain
    The Oregon DOT commented that Sec.  650.315 requirements are very 
reasonable. The Texas and Oklahoma DOTs suggested that the first 
sentence of

[[Page 74434]]

Sec.  650.315(a) be rewritten as follows: ``Each State and Federal 
agency must prepare and maintain an inventory of all bridges subject to 
the NBIS that are inspected according to Sec.  650.307.'' The Texas DOT 
asked if the States were required to maintain an inventory of federally 
owned bridges even though they are not inspected by the States.
    The Kansas DOT recommended that the second sentence in Sec.  
650.315(a) be rewritten to say, ``State and Federal agencies must 
collect, retain and submit certain * * *''.
    The AASHTO recommended revising the first two sentences of Sec.  
650.315(a) as follows: ``Each State must prepare and maintain an 
inventory of all bridges subject to the NBIS. Each Federal agency must 
prepare and maintain an inventory of all bridges subject to the NBIS.''
    FHWA response: We have modified Sec.  650.315(a) by removing the 
word ``and'' and replacing it with the word ``or.'' We do not require 
that States collect, report or retain the Federal bridge information. 
The FHWA annually provides a copy to each State of all the inspection 
information that was submitted by Federal agencies for each State. This 
is done so that the States may have a complete inventory and have 
access to Federal bridge data within the State.
Data Submittal Deadlines: Initial, Routine, In-Depth, Fracture 
Critical, Special and Underwater Inspections
    The New Jersey DOT interpreted the proposed Sec.  650.315(b) to 
apply only to major changes in NBI data rather than all inspection data 
which may not be available until the inspection report is complete. The 
Massachusetts DOT support the proposed changes. The Kansas DOT and the 
AASHTO recommended that inspection data from initial, routine, in-
depth, fracture critical, special and underwater inspections be entered 
into the NBI within 120 days of inspection, rather than 90 days.
    FHWA response: All inspection data is to be entered into the 
inventory whether it is new data or changed data. This is not always 
restricted to NBI item number 58 \19\, NBI item number 59 \20\ and NBI 
item number 60 \21\ since other items such as bridge clearances and 
safety features, may also change during an inspection cycle. The FHWA 
believes that the 90 day (3 month) period for entering the data allows 
a reasonable amount of time for completion of the inspection report and 
data entry.
---------------------------------------------------------------------------

    \19\ National Bridge Inventory ``item number 58,'' Deck, 
describes the overall condition rating of the deck.
    \20\ National Bridge Inventory ``item number 59,'' 
Superstructure, describes the physical condition of all structural 
members.
    \21\ National Bridge Inventory ``item number 60,'' Substructure, 
describes the physical condition of piers, abutments, piles, 
fenders, footings, or other components.
---------------------------------------------------------------------------

    The FHWA believes that extending the time required for entering the 
data after inspection to 180 days (6 months) for States or Federal 
agencies is too long. The 90-day time period for entering the data is 
consistent with the current regulation. The FHWA only collects this 
data once a year and any delay in the data being properly inventoried 
would not provide the FHWA the most current data available. Up-to-date 
information is vital to the program oversight, management and 
stewardship for the State and the FHWA. It is also important that the 
FHWA have current data because this data is used to: (1) Distribute 
funds for the HBRRP program (23 U.S.C. 144), (2) provide reports to 
Congress, and (3) make critical decisions regarding the bridge program. 
This necessitates adherence to a firm 90-day collection period.
Data Submittal Deadlines: Bridge Modifications and New Bridges
    The Massachusetts DOT supported the changes proposed to Sec.  
650.315(c). The Minnesota DOT recommended extending timelines to 
provide more flexibility to inspection agencies entering data, ``within 
one year not to exceed 90 days.'' The Kansas DOT and the AASHTO 
recommended allowing 120 days rather than 90 days to enter the data. 
The Washington DOT recommended adding a qualifier, ``open to traffic,'' 
to appropriately consider bridges built in phased construction where 
only a portion of the bridge may be open.
    FHWA response: The FHWA noted that extension of the time required 
for entering changed data because of bridge modifications or new bridge 
construction is not justified. The 90 day time frame for entering data 
is consistent with the current regulation. For the reasons listed in 
the FHWA response to Sec.  650.315(b), up-to-date information is vital 
to the bridge program. If any part of a highway bridge is open to 
traffic it should be inspected and inventoried in accordance with the 
NBIS.
Data Submittal Deadlines: Load Restriction or Closure Status
    The Massachusetts DOT supported the changes proposed to Sec.  
650.315(d). The Minnesota DOT recommended extending timelines to 
provide more flexibility to inspection agencies entering data, ``within 
one year not to exceed 90 days.'' The Kansas DOT and the AASHTO 
recommended allowing 120 days rather than 90 days to enter the data. 
The Minnesota DOT indicated it did not want to see the requirement to 
develop QA and QC measures to enforce these timelines.
    FHWA response: The FHWA noted that the time required for entering 
changed data due to load restriction or closure status being extended 
to 180 days (6 months) is too long. The 90-day time frame for entering 
data is consistent with the current regulation. The FHWA only collects 
this data once a year and any delay in the data being properly 
inventoried would not provide the FHWA the most current data available. 
For the reasons listed in the FHWA response to Sec.  650.315(b), up-to-
date information is vital to the bridge program. The FHWA is not 
requiring that a ``QA and QC measure'' be developed to enforce these 
timelines.

Section 650.317 Reference Manuals

    The South Dakota DOT supports Sec.  650.317.
    The Kansas DOT and the AASHTO recommended the FHWA combine Sec.  
650.317(a) and Sec.  650.317(b). The Michigan DOT does not support the 
incorporation of the AASHTO Manual in Sec.  650.317(a), reasoning that 
an overly detailed regulation could incur unnecessary liability for the 
States due to the difficulty of achieving 100 percent compliance. The 
AASHTO commented that the availability of a 2003 Interim revision to 
the AASHTO Manual would necessitate adding it to the reference manuals.
    FHWA response: The FHWA does not agree with combining Sec.  
650.317(a) and Sec.  650.317(b) since they are two distinct documents. 
The FHWA agrees that the 2003 Interim revision to the AASHTO Manual for 
Condition Evaluation of Bridges needs to be incorporated by reference 
and has made that change.
Related Rulemakings and Notices
    The FHWA is also in the process of reviewing 23 CFR part 650, 
subpart D, Highway Bridge Replacement and Rehabilitation Program 
(HBRRP). The FHWA published an advance notice of proposed rulemaking 
for the HBRRP on September 26, 2001, at 66 FR 49152. The FHWA also 
recently published a notice of proposed rulemaking for the HBRRP on 
June 21, 2004, at 69 FR 34314.

[[Page 74435]]

Rulemaking Analyses 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 a significant 
regulatory action within the meaning of Executive Order 12866 and is 
significant within the meaning of the U.S. Department of Transportation 
regulatory policies and procedures. This action is considered 
significant because of the substantial public interest in the safety of 
highway bridges. The Office of Management and Budget (OMB) designated 
this regulation as a significant regulatory action and has reviewed it 
under E.O. 12866.
    We have analyzed the costs associated with this rulemaking. We 
believe that the costs of the changes in this final rule will be 
minimal because we believe that most States already adhere to many of 
the inspection procedures set forth in this rule and, therefore, we 
believe these changes will add less than $1 million to the costs 
associated with a multi-billon dollar program. Additionally, the bridge 
program is part of the Federal-aid highway program and, thus, the costs 
associated with this rule are eligible for funding under this program. 
We believe the changes to the inspection program are minor and will not 
be costly to the States. Finally, we have carefully analyzed the costs 
associated with the information collection and we believe the cost 
associated with the minor increase in burden hours will be $52,000 or 
about $1000 per State (to include the District of Columbia and Puerto 
Rico); therefore, the total cost of the entire information collection 
will be approximately $13,552,000, or an average of $260,000 per State. 
These information collection costs also may be reimbursed under the 
Federal-aid highway program.
    This final rule 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 will not 
materially alter the budgetary impact of any entitlements, grants, user 
fees, or loan programs. Consequently, a full regulatory evaluation is 
not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612) the FHWA has evaluated the effects of this action on 
small entities and has determined that the action will not have a 
significant economic impact on a substantial number of small entities. 
Since the regulatory changes are primarily directed to the States, 
which are not considered small entities for the purposes of the 
Regulatory Flexibility Act, the FHWA is able to certify that this final 
rule will not have a significant economic impact on a substantial 
number of small entities.

Unfunded Mandates Reform Act of 1995

    This rule does not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 
109 Stat. 48). This rule will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $120.7 million or more in any one year (2 U.S.C. 1532). The 
definition of ``Federal mandate'' in the Unfunded Mandates Reform Act 
excludes financial assistance of the type in which State, local or 
tribal governments have authority to adjust their participation in the 
program in accordance with changes made in the program by the Federal 
government. The Federal-aid highway program permits this type of 
flexibility to the States. Additionally, funding to inventory highway 
bridges, as well as Indian reservation and park road bridges, is 
currently provided under 23 U.S.C. 144, Highway Bridge Replacement and 
Rehabilitation Program (HBRRP). Bridge inspection is an eligible 
activity under the HBRRP and Federal funding is available to the States 
under the HBRRP.

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 final 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 12630 (Taking of Private Property)

    This action will not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, and the FHWA has 
determined that this action will not have sufficient federalism 
implications to warrant the preparation of a Federalism assessment. The 
FHWA has also determined that this action does not preempt any State 
law or State regulation or affect the States' ability to discharge 
traditional State governmental functions.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this action under Executive Order 13175, 
dated November 6, 2000. The FHWA believes that this action 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 State reporting 
requirements related to the National Bridge Inspection Standards are 
covered by an existing FHWA information collection entitled Structure 
Inventory and Appraisal (SI&A) Sheet. The OMB control number for this 
collection is 2125-0501. The current annual burden imposed on the 
States under this information collection is 540,000 hours.
    The SI&A sheets are used by the States and Federal agencies to 
provide to the FHWA the required information on annual bridge 
inspections. The FHWA has determined that the new requirements in this 
final rule will place an additional 2,080 burden hours on the States, 
which will result in a total annual burden of 542,080 hours. The 
additional burden is based on a review of the national bridge 
inspection data coupled with the additional NBIS requirements this 
rulemaking action

[[Page 74436]]

imposes on the States. These requirements include the development of 
procedures for follow-up on critical findings.
    In the NPRM published on September 9, 2003, the FHWA proposed a 
burden increase of 67,000 hours for the information collection, OMB 
control number 2125-0501, and invited interested parties to send 
comments regarding any aspect of these information collection 
requirements. Such comments could include, but were not limited to: (1) 
Whether the collection of information will be necessary for the 
performance of the functions of the FHWA, including whether the 
information will have practical utility; (2) the accuracy of the 
estimated burden; (3) ways to enhance the quality, utility, and clarity 
of the collection of information; and (4) ways to minimize the 
collection burden without reducing the quality of the information 
collected. The FHWA did not receive any comments in response to the 
proposed burden hour increase of 67,000 hours. The revision to the 
information collection, OMB control number 2125-0501, based on this 
final rule will increase the burden hours by only 2,080 hours, a much 
smaller amount than that originally proposed in the NPRM.

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) and has determined 
that this action will not have any effect on the quality of the 
environment.

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 although it is a significant 
regulatory action under Executive Order 12866 it is not likely to have 
a significant adverse effect on the supply, distribution, or use of 
energy.

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 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, 
Incorporation by reference, Reporting and record keeping requirements.

    Issued on: December 9, 2004.
Mary E. Peters,
Federal Highway Administrator.

0
In consideration of the foregoing, the FHWA is amending title 23, Code 
of Federal Regulations, part 650, subpart C, as follows:

PART 650--BRIDGES, STRUCTURES, AND HYDRAULICS

0
1. The authority citation for part 650 continues 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.; 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); sec. 161 of Public 
Law 97-424, 96 Stat. 2097, 3135; sec. 4(b) of Public Law 97-134, 95 
Stat. 1699; and sec. 1057 of Public Law 102-240, 105 Stat. 2002; and 
sec. 1311 of Pub. L. 105-178, as added by Pub. L. 105-206, 112 Stat. 
842 (1998).


0
2. Revise subpart C to read as follows:
Subpart C--National Bridge Inspection Standards
Sec.
650.301 Purpose.
650.303 Applicability.
650.305 Definitions.
650.307 Bridge inspection organization.
650.309 Qualifications of personnel.
650.311 Inspection frequency.
650.313 Inspection procedures.
650.315 Inventory.
650.317 Reference manuals.

Subpart C--National Bridge Inspection Standards


Sec.  650.301  Purpose.

    This subpart sets the national standards for the proper safety 
inspection and evaluation of all highway bridges in accordance with 23 
U.S.C. 151.


Sec.  650.303  Applicability.

    The National Bridge Inspection Standards (NBIS) in this subpart 
apply to all structures defined as highway bridges located on all 
public roads.


Sec.  650.305  Definitions.

    Terms used in this subpart are defined as follows:
    American Association of State Highway and Transportation Officials 
(AASHTO) Manual. ``Manual for Condition Evaluation of Bridges,'' second 
edition, published by the American Association of State Highway and 
Transportation Officials (incorporated by reference, see Sec.  
650.317).
    Bridge. A structure including supports erected over a depression or 
an obstruction, such as water, highway, or railway, and having a track 
or passageway for carrying traffic or other moving loads, and having an 
opening measured along the center of the roadway of more than 20 feet 
between undercopings of abutments or spring lines of arches, or extreme 
ends of openings for multiple boxes; it may also include multiple 
pipes, where the clear distance between openings is less than half of 
the smaller contiguous opening.
    Bridge inspection experience. Active participation in bridge 
inspections in accordance with the NBIS, in either a field inspection, 
supervisory, or management role. A combination of bridge design, bridge 
maintenance, bridge construction and bridge inspection experience, with 
the predominant amount in bridge inspection, is acceptable.
    Bridge inspection refresher training. The National Highway 
Institute ``Bridge Inspection Refresher Training Course'' \1\ or other 
State, local, or federally developed instruction aimed to improve 
quality of inspections, introduce new techniques, and maintain the 
consistency of the inspection program.
---------------------------------------------------------------------------

    \1\ The National Highway Institute training may be found at the 
following URL: http://www.nhi.fhwa.dot.gov./
---------------------------------------------------------------------------

    Bridge Inspector's Reference Manual (BIRM). A comprehensive FHWA 
manual on programs, procedures and techniques for inspecting and 
evaluating a variety of in-service highway bridges. This manual may be 
purchased from the U.S. Government Printing Office, Washington, DC 
20402 and from National Technical Information Service, Springfield, 
Virginia 22161, and is available at the following URL: http://
www.fhwa.dot.gov/bridge/bripub.htm.
    Complex bridge. Movable, suspension, cable stayed, and other 
bridges with unusual characteristics.
    Comprehensive bridge inspection training. Training that covers all 
aspects of bridge inspection and enables inspectors to relate 
conditions observed on a bridge to established criteria (see the Bridge 
Inspector's Reference Manual for the recommended material to be covered 
in a comprehensive training course).
    Critical finding. A structural or safety related deficiency that 
requires immediate follow-up inspection or action.
    Damage inspection. This is an unscheduled inspection to assess 
structural damage resulting from environmental factors or human 
actions.

[[Page 74437]]

    Fracture critical member (FCM). A steel member in tension, or with 
a tension element, whose failure would probably cause a portion of or 
the entire bridge to collapse.
    Fracture critical member inspection. A hands-on inspection of a 
fracture critical member or member components that may include visual 
and other nondestructive evaluation.
    Hands-on. Inspection within arms length of the component. 
Inspection uses visual techniques that may be supplemented by 
nondestructive testing.
    Highway. The term ``highway'' is defined in 23 U.S.C. 101(a)(11).
    In-depth inspection. A close-up, inspection of one or more members 
above or below the water level to identify any deficiencies not readily 
detectable using routine inspection procedures; hands-on inspection may 
be necessary at some locations.
    Initial inspection. The first inspection of a bridge as it becomes 
a part of the bridge file to provide all Structure Inventory and 
Appraisal (SI&A) data and other relevant data and to determine baseline 
structural conditions.
    Legal load. The maximum legal load for each vehicle configuration 
permitted by law for the State in which the bridge is located.
    Load rating. The determination of the live load carrying capacity 
of a bridge using bridge plans and supplemented by information gathered 
from a field inspection.
    National Institute for Certification in Engineering Technologies 
(NICET). The NICET provides nationally applicable voluntary 
certification programs covering several broad engineering technology 
fields and a number of specialized subfields. For information on the 
NICET program certification contact: National Institute for 
Certification in Engineering Technologies, 1420 King Street, 
Alexandria, VA 22314-2794.
    Operating rating. The maximum permissible live load to which the 
structure may be subjected for the load configuration used in the 
rating.
    Professional engineer (PE). An individual, who has fulfilled 
education and experience requirements and passed rigorous exams that, 
under State licensure laws, permits them to offer engineering services 
directly to the public. Engineering licensure laws vary from State to 
State, but, in general, to become a PE an individual must be a graduate 
of an engineering program accredited by the Accreditation Board for 
Engineering and Technology, pass the Fundamentals of Engineering exam, 
gain four years of experience working under a PE, and pass the 
Principles of Practice of Engineering exam.
    Program Manager. The individual in charge of the program, that has 
been assigned or delegated the duties and responsibilities for bridge 
inspection, reporting, and inventory. The program manager provides 
overall leadership and is available to inspection team leaders to 
provide guidance.
    Public road. The term ``public road'' is defined in 23 U.S.C. 
101(a)(27).
    Quality assurance (QA). The use of sampling and other measures to 
assure the adequacy of quality control procedures in order to verify or 
measure the quality level of the entire bridge inspection and load 
rating program.
    Quality control (QC). Procedures that are intended to maintain the 
quality of a bridge inspection and load rating at or above a specified 
level.
    Routine inspection. Regularly scheduled inspection consisting of 
observations and/or measurements needed to determine the physical and 
functional condition of the bridge, to identify any changes from 
initial or previously recorded conditions, and to ensure that the 
structure continues to satisfy present service requirements.
    Routine permit load. A live load, which has a gross weight, axle 
weight or distance between axles not conforming with State statutes for 
legally configured vehicles, authorized for unlimited trips over an 
extended period of time to move alongside other heavy vehicles on a 
regular basis.
    Scour. Erosion of streambed or bank material due to flowing water; 
often considered as being localized around piers and abutments of 
bridges.
    Scour critical bridge. A bridge with a foundation element that has 
been determined to be unstable for the observed or evaluated scour 
condition.
    Special inspection. An inspection scheduled at the discretion of 
the bridge owner, used to monitor a particular known or suspected 
deficiency.
    State transportation department. The term ``State transportation 
department'' is defined in 23 U.S.C. 101(a)(34).
    Team leader. Individual in charge of an inspection team responsible 
for planning, preparing, and performing field inspection of the bridge.
    Underwater diver bridge inspection training. Training that covers 
all aspects of underwater bridge inspection and enables inspectors to 
relate the conditions of underwater bridge elements to established 
criteria (see the Bridge Inspector's Reference Manual section on 
underwater inspection for the recommended material to be covered in an 
underwater diver bridge inspection training course).
    Underwater inspection. Inspection of the underwater portion of a 
bridge substructure and the surrounding channel, which cannot be 
inspected visually at low water by wading or probing, generally 
requiring diving or other appropriate techniques.


Sec.  650.307  Bridge inspection organization.

    (a) Each State transportation department must inspect, or cause to 
be inspected, all highway bridges located on public roads that are 
fully or partially located within the State's boundaries, except for 
bridges that are owned by Federal agencies.
    (b) Federal agencies must inspect, or cause to be inspected, all 
highway bridges located on public roads that are fully or partially 
located within the respective agency responsibility or jurisdiction.
    (c) Each State transportation department or Federal agency must 
include a bridge inspection organization that is responsible for the 
following:
    (1) Statewide or Federal agencywide bridge inspection policies and 
procedures, quality assurance and quality control, and preparation and 
maintenance of a bridge inventory.
    (2) Bridge inspections, reports, load ratings and other 
requirements of these standards.
    (d) Functions identified in paragraphs (c)(1) and (2) of this 
section may be delegated, but such delegation does not relieve the 
State transportation department or Federal agency of any of its 
responsibilities under this subpart.
    (e) The State transportation department or Federal agency bridge 
inspection organization must have a program manager with the 
qualifications defined in Sec.  650.309(a), who has been delegated 
responsibility for paragraphs (c)(1) and (2) of this section.


Sec.  650.309  Qualifications of personnel.

    (a) A program manager must, at a minimum:
    (1) Be a registered professional engineer, or have ten years bridge 
inspection experience; and
    (2) Successfully complete a Federal Highway Administration (FHWA) 
approved comprehensive bridge inspection training course.
    (b) There are five ways to qualify as a team leader. A team leader 
must, at a minimum:
    (1) Have the qualifications specified in paragraph (a) of this 
section; or
    (2) Have five years bridge inspection experience and have 
successfully completed an FHWA approved comprehensive bridge inspection 
training course; or

[[Page 74438]]

    (3) Be certified as a Level III or IV Bridge Safety Inspector under 
the National Society of Professional Engineer's program for National 
Certification in Engineering Technologies (NICET) and have successfully 
completed an FHWA approved comprehensive bridge inspection training 
course, or
    (4) Have all of the following:
    (i) A bachelor's degree in engineering from a college or university 
accredited by or determined as substantially equivalent by the 
Accreditation Board for Engineering and Technology;
    (ii) Successfully passed the National Council of Examiners for 
Engineering and Surveying Fundamentals of Engineering examination;
    (iii) Two years of bridge inspection experience; and
    (iv) Successfully completed an FHWA approved comprehensive bridge 
inspection training course, or
    (5) Have all of the following:
    (i) An associate's degree in engineering or engineering technology 
from a college or university accredited by or determined as 
substantially equivalent by the Accreditation Board for Engineering and 
Technology;
    (ii) Four years of bridge inspection experience; and
    (iii) Successfully completed an FHWA approved comprehensive bridge 
inspection training course.
    (c) The individual charged with the overall responsibility for load 
rating bridges must be a registered professional engineer.
    (d) An underwater bridge inspection diver must complete an FHWA 
approved comprehensive bridge inspection training course or other FHWA 
approved underwater diver bridge inspection training course.


Sec.  650.311  Inspection frequency.

    (a) Routine inspections. (1) Inspect each bridge at regular 
intervals not to exceed twenty-four months.
    (2) Certain bridges require inspection at less than twenty-four-
month intervals. Establish criteria to determine the level and 
frequency to which these bridges are inspected considering such factors 
as age, traffic characteristics, and known deficiencies.
    (3) Certain bridges may be inspected at greater than twenty-four 
month intervals, not to exceed forty-eight-months, with written FHWA 
approval. This may be appropriate when past inspection findings and 
analysis justifies the increased inspection interval.
    (b) Underwater inspections. (1) Inspect underwater structural 
elements at regular intervals not to exceed sixty months.
    (2) Certain underwater structural elements require inspection at 
less than sixty-month intervals. Establish criteria to determine the 
level and frequency to which these members are inspected considering 
such factors as construction material, environment, age, scour 
characteristics, condition rating from past inspections and known 
deficiencies.
    (3) Certain underwater structural elements may be inspected at 
greater than sixty-month intervals, not to exceed seventy-two months, 
with written FHWA approval. This may be appropriate when past 
inspection findings and analysis justifies the increased inspection 
interval.
    (c) Fracture critical member (FCM) inspections. (1) Inspect FCMs at 
intervals not to exceed twenty-four months.
    (2) Certain FCMs require inspection at less than twenty-four-month 
intervals. Establish criteria to determine the level and frequency to 
which these members are inspected considering such factors as age, 
traffic characteristics, and known deficiencies.
    (d) Damage, in-depth, and special inspections. Establish criteria 
to determine the level and frequency of these inspections.


Sec.  650.313  Inspection procedures.

    (a) Inspect each bridge in accordance with the inspection 
procedures in the AASHTO Manual (incorporated by reference, see Sec.  
650.317).
    (b) Provide at least one team leader, who meets the minimum 
qualifications stated in Sec.  650.309, at the bridge at all times 
during each initial, routine, in-depth, fracture critical member and 
underwater inspection.
    (c) Rate each bridge as to its safe load-carrying capacity in 
accordance with the AASHTO Manual (incorporated by reference, see Sec.  
650.317). Post or restrict the bridge in accordance with the AASHTO 
Manual or in accordance with State law, when the maximum unrestricted 
legal loads or State routine permit loads exceed that allowed under the 
operating rating or equivalent rating factor.
    (d) Prepare bridge files as described in the AASHTO Manual 
(incorporated by reference, see Sec.  650.317). Maintain reports on the 
results of bridge inspections together with notations of any action 
taken to address the findings of such inspections. Maintain relevant 
maintenance and inspection data to allow assessment of current bridge 
condition. Record the findings and results of bridge inspections on 
standard State or Federal agency forms.
    (e) Identify bridges with FCMs, bridges requiring underwater 
inspection, and bridges that are scour critical.
    (1) Bridges with fracture critical members. In the inspection 
records, identify the location of FCMs and describe the FCM inspection 
frequency and procedures. Inspect FCMs according to these procedures.
    (2) Bridges requiring underwater inspections. Identify the location 
of underwater elements and include a description of the underwater 
elements, the inspection frequency and the procedures in the inspection 
records for each bridge requiring underwater inspection. Inspect those 
elements requiring underwater inspections according to these 
procedures.
    (3) Bridges that are scour critical. Prepare a plan of action to 
monitor known and potential deficiencies and to address critical 
findings. Monitor bridges that are scour critical in accordance with 
the plan.
    (f) Complex bridges. Identify specialized inspection procedures, 
and additional inspector training and experience required to inspect 
complex bridges. Inspect complex bridges according to those procedures.
    (g) Quality control and quality assurance. Assure systematic 
quality control (QC) and quality assurance (QA) procedures are used to 
maintain a high degree of accuracy and consistency in the inspection 
program. Include periodic field review of inspection teams, periodic 
bridge inspection refresher training for program managers and team 
leaders, and independent review of inspection reports and computations.
    (h) Follow-up on critical findings. Establish a statewide or 
Federal agency wide procedure to assure that critical findings are 
addressed in a timely manner. Periodically notify the FHWA of the 
actions taken to resolve or monitor critical findings.


Sec.  650.315  Inventory.

    (a) Each State or Federal agency must prepare and maintain an 
inventory of all bridges subject to the NBIS. Certain Structure 
Inventory and Appraisal (SI&A) data must be collected and retained by 
the State or Federal agency for collection by the FHWA as requested. A 
tabulation of this data is contained in the SI&A sheet distributed by 
the FHWA as part of the ``Recording and Coding Guide for the Structure 
Inventory and Appraisal of the Nation's Bridges,'' (December 1995) 
together with subsequent interim changes or the most recent version. 
Report the data using FHWA established procedures as

[[Page 74439]]

outlined in the ``Recording and Coding Guide for the Structure 
Inventory and Appraisal of the Nation's Bridges.''
    (b) For routine, in-depth, fracture critical member, underwater, 
damage and special inspections enter the SI&A data into the State or 
Federal agency inventory within 90 days of the date of inspection for 
State or Federal agency bridges and within 180 days of the date of 
inspection for all other bridges.
    (c) For existing bridge modifications that alter previously 
recorded data and for new bridges, enter the SI&A data into the State 
or Federal agency inventory within 90 days after the completion of the 
work for State or Federal agency bridges and within 180 days after the 
completion of the work for all other bridges.
    (d) For changes in load restriction or closure status, enter the 
SI&A data into the State or Federal agency inventory within 90 days 
after the change in status of the structure for State or Federal agency 
bridges and within 180 days after the change in status of the structure 
for all other bridges.


Sec.  650.317  Reference manuals.

    (a) The materials listed in this subpart are incorporated by 
reference in the corresponding sections noted. These incorporations by 
reference were approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials are 
incorporated as they exist on the date of the approval, and notice of 
any change in these documents will be published in the Federal 
Register. The materials are available for purchase at the address 
listed below, and are available for inspection at the National Archives 
and Records Administration (NARA). These materials may also be reviewed 
at the Department of Transportation Library, 400 Seventh Street, SW., 
Washington, DC, in Room 2200. For information on the availability of 
these materials at NARA call (202) 741-6030, or go to the following 
URL: http://www.archives.gov/federal_register/code_of_federal_
regulations/ibr_locations.html. In the event there is a conflict 
between the standards in this subpart and any of these materials, the 
standards in this subpart will apply.
    (b) The following materials are available for purchase from the 
American Association of State Highway and Transportation Officials, 
Suite 249, 444 N. Capitol Street, NW., Washington, DC 20001. The 
materials may also be ordered via the AASHTO bookstore located at the 
following URL: http://www.aashto.org/aashto/home.nsf/FrontPage.
    (1) The Manual for Condition Evaluation of Bridges, 1994, second 
edition, as amended by the 1995, 1996, 1998, and 2000 interim 
revisions, AASHTO, incorporation by reference approved for Sec. Sec.  
650.305 and 650.313.
    (2) 2001 Interim Revision to the Manual for Condition Evaluation of 
Bridges, AASHTO, incorporation by reference approved for Sec. Sec.  
650.305 and 650.313.
    (3) 2003 Interim Revision to the Manual for Condition Evaluation of 
Bridges, AASHTO, incorporation by reference approved for Sec. Sec.  
650.305 and 650.313.

[FR Doc. 04-27355 Filed 12-13-04; 8:45 am]
BILLING CODE 4910-22-P