[Federal Register Volume 78, Number 110 (Friday, June 7, 2013)]
[Notices]
[Pages 34424-34427]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13526]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2013-0021]


National Bridge Inspection Standards Review Process; Notice and 
Request for Comment

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice; request for comment.

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SUMMARY: The National Bridge Inspection Standards (NBIS), codified in 
23 CFR 650 Subpart C, establishes the minimum standards for inspection 
of all structures defined as highway bridges on public roads. The FHWA 
annually reviews each State's bridge inspection program to evaluate 
compliance with the NBIS. In 2011, FHWA implemented a new systematic, 
data-driven, risk-based oversight process which is used by FHWA 
Divisions to review State compliance with the NBIS. The new process was 
developed prior to the establishment of the review requirements 
identified in the Moving Ahead for Progress in the 21st Century Act 
(MAP-21), Section 1111. Development of the internal FHWA review process 
included consultation with stakeholders through a pilot project, a 
joint FHWA/AASHTO task force, as well as with individual States and 
Federal agencies during the initial implementation of the process in 
2011. The FHWA intends to continue this data-driven, risk-based review 
process to evaluate State compliance with the NBIS, including 
incorporation of any modifications based upon the comments received 
through this Notice.

DATES: Comments must be received on or before July 8, 2013. Late 
comments will be considered to the extent practicable.

ADDRESSES: Mail or hand deliver comments to the U.S. Department of 
Transportation, Dockets Management Facility, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590, or fax comments to (202) 493-
2251. Alternatively, comments may be submitted to the Federal 
eRulemaking portal at http://www.regulations.gov. All comments must 
include the docket number that appears in the heading of this document. 
All comments received will be available for examination and copying at 
the above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, 
except Federal holidays. Those desiring notification of receipt of 
comments must include a self-addressed, stamped postcard or you may 
print the acknowledgment page that appears after submitting comments 
electronically. Anyone is able to search the electronic form of all 
comments in any one of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, or labor union). Anyone may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70, Pages 19477-78).

FOR FURTHER INFORMATION CONTACT: For questions about the program 
discussed herein, contact Thomas D. Everett, Principal Bridge Engineer, 
FHWA Office of Bridge Technology, (202) 366-4675 or via email at 
Thomas.everett@dot.gov. For legal questions, please contact Robert 
Black, Office of the Chief Counsel, (202) 366-1359, or via email at 
Robert.Black@dot.gov. Office hours are from 8:00 a.m. to 4:30 p.m., 
e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    You may submit or retrieve comments online through the Federal 
eRulemaking portal at: http://www.regulations.gov. The Web site is 
available 24 hours each day, 365 days each year. Please follow the 
instructions. Electronic submission and retrieval help and guidelines 
are available under the help section of the Web site. An electronic 
copy of this document may also be downloaded from the Office of the 
Federal Register's home page at: http://www.archives.gov and the 
Government Printing Office's Web page at: http://www.access.gpo.gov/nara.

 Purpose of This Notice

    The FHWA is requesting comment on the process FHWA uses to conduct 
reviews of State compliance with the NBIS and the associated penalty 
process for findings of noncompliance. Comments received through this 
Notice will be considered by FHWA for improving the review process.

Background

    For more than 30 years, the FHWA has annually assessed each State's 
bridge inspection program to evaluate compliance with the NBIS as 
codified at 23 CFR 650 Subpart C. Historically, the depth and scope of 
the reviews varied based upon the FHWA's knowledge of the State's 
inspection program and experience of the FHWA staff. In 2009, the 
Office of Inspector General (OIG) issued an audit report National 
Bridge Inspection Program: Assessment of FHWA's Implementation of Data-
Driven, Risk-Based Oversight \1\ that summarized their review of FHWA 
oversight of the National Bridge Inspection Program. One of the five 
OIG recommendations from this audit was for FHWA to develop and 
implement minimum requirements for data-driven, risk-based bridge 
oversight during bridge engineer's annual NBIS compliance reviews. In 
Senate Report 110-418 \2\, strong support was given to the OIG 
recommendations and the need for prompt action by the FHWA. In 
addition, the House of Representatives

[[Page 34425]]

Conference Report 111-366 \3\, directed FHWA to improve its oversight 
of bridge safety and conditions. In response to the OIG recommendations 
and congressional direction, FHWA developed a new systematic, data-
driven, risk-based oversight process for monitoring State compliance 
with the NBIS. In 2010, a pilot program was initiated using the new 
process in nine States. Adjustments were made following the pilot in 
preparation for nationwide implementation in February 2011. After the 
nationwide implementation, a joint FHWA/AASHTO task force was 
established in the fall of 2011 to further identify possible 
modifications or opportunities for improvement to the assessment 
process. One of the first steps the task-force completed was the 
gathering of information from all States and interested Federal 
agencies requesting their input and feedback on the assessment process. 
The FHWA collected information from internal staff. The AASHTO gathered 
information from the States. The information collected was used to help 
identify and prioritize improvements to the process. The joint task 
force efforts resulted in FHWA implementing several improvements in 
April 2012.
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    \1\ Report MH-2009-013; http://www.oig.dot.gov/sites/dot/files/pdfdocs/BRIDGE_I_REPORT_FINAL.pdf..
    \2\ Senate Report 110-418; http://www.gpo.gov/fdsys/pkg/CRPT-110srpt418/pdf/CRPT-110srpt418.pdf.
    \3\ House of Representatives Conference Report 111-366; http://www.gpo.gov/fdsys/pkg/CRPT-111hrpt366/pdf/CRPT-111hrpt366.pdf.
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    Section 1111 of the MAP-21 (Pub. L. 114-141, 126 Stat. 405) 
modified 23 U.S.C. 144(h)(3)(A)(i) to include provisions for the 
Secretary to establish, in consultation with the States, Federal 
agencies, and interested and knowledgeable private organizations and 
individuals, procedures to conduct reviews of State compliance with the 
NBIS. The MAP-21 also establishes a penalty for States determined to be 
in noncompliance with the NBIS in 23 U.S.C. 144(h)(5).
    The FHWA developed and implemented the current review process to 
evaluate a State's bridge inspection program for compliance with the 
NBIS prior to the requirements of MAP-21, Section 1111. The development 
of the review process included consultation with stakeholders through 
the pilot project, the joint FHWA/AASHTO taskforce, as well as with 
individual States and Federal agencies during the initial 
implementation of the process in 2011. The FHWA intends to continue 
using the data-driven, risk-based review process that was implemented 
in 2011 to evaluate State compliance with the NBIS as required by 23 
U.S.C. 144(h)(4)(A). The FHWA also proposes to implement the penalty 
provisions in 23 U.S.C. 144(h)(5) using the process described below. 
Comments are hereby requested on FHWA's plan to review compliance and 
address noncompliance as outlined below.

Review Process Overview

    Each FHWA Division office annually assesses the State's compliance 
with 23 individual metrics which are directly aligned with the existing 
NBIS regulation. The risk-based assessment process followed during this 
annual assessment utilizes objective data, employs statistical sampling 
of data and inspection records, and includes defined criteria for 
compliance for each metric. States are notified by FHWA of any findings 
of noncompliance no later than December 31. In accordance with the 
requirements of 23 U.S.C. 144 as established by MAP-21, within 45 days 
of the FHWA notification of noncompliance, the State will correct the 
issue of noncompliance or submit to FHWA a Plan of Corrective Action 
(PCA) which outlines how noncompliant findings will be addressed. The 
FHWA will have 45 days for review, comment, and if appropriate accept 
the PCA. Final compliance determinations by FHWA are to be made no 
later than March 31. This annual process allows the FHWA to assess NBIS 
compliance by each State's bridge inspection program and implements any 
required penalties in a nationally consistent manner.

Metrics

    The metrics, or measures, are designed to assess the quality and 
performance of each State's bridge inspection program and, 
collectively, the national program that has been established to assure 
highway bridges are safe. The following 23 metrics are directly aligned 
with the existing requirements of the NBIS and have been established to 
provide a comprehensive assessment of compliance with the NBIS.

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

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

(1) NBIS Component To Be Reviewed

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

(2) Compliance Levels

    Each of the 23 metrics is annually assessed and assigned one of 
four compliance levels--compliant, substantially compliant, 
noncompliant, or conditionally compliant--based upon specific 
thresholds or measures for each compliance level for each metric. The 
degrees of compliance are described as follows:
    Compliant--Adhering to the NBIS regulation.
    Substantially Compliant--Adhering to the NBIS regulation with minor 
deficiencies. These deficiencies do not adversely affect the overall 
effectiveness of the program and are isolated in nature. Documented 
deficiencies are provided to the State with the expectation that they 
will be corrected within 12 months or less, unless the deficiencies are 
related to issues that would most efficiently be corrected during the 
next inspection. A written response to the FHWA describing the expected 
corrective action is required.
    Noncompliant--Not adhering to the NBIS regulation. Identified 
deficiencies may adversely affect the overall effectiveness of the 
program. Failure to adhere to an approved PCA is also considered 
noncompliance.
    Conditionally Compliant--Taking corrective action in conformance 
with

[[Page 34426]]

an FHWA approved PCA to achieve compliance with the NBIS. Deficiencies, 
if not corrected, may adversely affect the overall effectiveness of the 
program.
    The four compliance levels are grouped into bridge inspection 
program performance levels for clarity in communicating the results:
    Satisfactory--Adhering to the intent of the NBIS regulation. There 
may be minor deficiencies, but these deficiencies do not adversely 
affect the overall effectiveness of the program and are isolated in 
nature.
    Actively Improving--A PCA is in place to improve the areas 
identified as not meeting the requirements of the NBIS.
    Unsatisfactory--Not adhering to the NBIS. Deficiencies exist that 
may adversely affect the overall effectiveness of the inspection 
program.
    Compliant and substantially compliant metrics are grouped to 
represent program performance at the satisfactory level. Conditionally 
compliant metrics represent a program area that is categorized as 
actively improving, and noncompliant represents a program performance 
at the unsatisfactory level.
    Improvement plans and plans of corrective action are defined as 
follows:
    Improvement Plan (IP)--A written response by the State which 
documents the agreement for corrective actions to address deficiencies 
identified in a substantial compliance determination. The completion 
timeframe for such agreements is limited to 12 months or less, unless 
the deficiencies are related to issues that would most efficiently be 
corrected during the next inspection cycle.
    Plan of Corrective Action (PCA)--A documented actions agreement 
prepared and submitted by the State and approved by FHWA describing the 
process and timelines to correct noncompliant NBIS requirements. The 
term of ``corrective action plan'' in MAP-21 is interchangeable with 
PCA.

(3) Evaluation Criteria

    The evaluation criteria identify the specific measures for each 
metric for which compliance will be evaluated.

(4) Assessment Levels

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

Review Cycle and Schedule

    In accordance with 23 U.S.C. 144(h)(4), FHWA will annually review 
State compliance with the NBIS. In calendar year 2011, FHWA performed a 
baseline assessment in which all 23 metrics were reviewed at the 
intermediate assessment level. Subsequent reviews will utilize the 
following process.

Review Cycle

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

Annual Review Schedule

    Each FHWA Division will conduct an annual assessment of the State's 
compliance with the NBIS. Key dates are as follows:
    (a) April 1--FHWA begins annual NBIS assessment.
    (b) By December 31--FHWA makes compliance assessment for each 
metric and issues a report to each State detailing issues of 
noncompliance or substantial compliance.
    (c) March 31--Final compliance determination completed for all 
metrics. The final determination is based on the resolution of 
compliance issues or development of an acceptable PCA following the 
December 31 notification.
    The proposed schedule may need to be modified on a case-by-case 
basis when unique and unexpected extenuating circumstances arise. The 
FHWA will address this issue on a case-by-case basis when it arises.
    Where an issue of noncompliance with the NBIS is identified outside 
the review procedures above, the FHWA will notify the State of the 
noncompliance and will work with the State to establish a timeframe in 
which the issue of noncompliance must be addressed or an acceptable PCA 
submitted.

Findings of Noncompliance

    The FHWA Division offices will issue a report to the State 
detailing the issues of noncompliance for a metric determined to be 
noncompliant by December 31 of the review period. The report will list 
the regulatory code and title for each noncompliance deficiency, 
identify the deficiency, and specify that

[[Page 34427]]

the deficiency has to be corrected, or a PCA submitted, within 45 
calendar days of notification. The State will have 45 days to either 
correct the issue of noncompliance or submit a PCA to FHWA. The PCA 
should, at a minimum, include the following information:
    (a) Identify area of noncompliance;
    (b) Identify the date FHWA notified State of noncompliance;
    (c) Identify actions to be taken to address areas of noncompliance;
    (d) Estimate duration and completion date for each action;
    (e) Define frequency and reporting format which will be used to 
monitor; progress towards successful completion of the PCA; and
    (f) Identify what the State considers to be successful completion 
of PCA.
    After the State submits a PCA, FHWA will have 45 days to review and 
if appropriate, accept the submitted PCA. Upon FHWA acceptance of the 
PCA, the final compliance determination for the associated metric will 
be conditionally compliant. If the PCA is not submitted to FHWA in 45 
days after notification of noncompliance or the PCA does not address 
the issues of noncompliance, the final compliance determination for the 
associated metric will be noncompliant.

Penalty for Noncompliance

    The FHWA will continue to encourage the State to address the 
noncompliance issues following the final noncompliance determination 
and expiration of the period allowed to develop a PCA. If a State 
remains in noncompliance on August 1 following a final compliance 
determination of noncompliance, FHWA will require the State to dedicate 
funds to correct the noncompliance, in accordance with 23 U.S.C. 
144(h)(5). The State must submit an analysis of actions needed to 
correct the finding of noncompliance to FHWA no later than August 1. 
The analysis must identify the actions to be taken, estimated duration 
and completion date for each action, and an itemized amount of funds to 
be directed for each action to address the noncompliance. The analysis 
plan will require the approval of the FHWA. The FHWA will require on 
October 1 of that year, and each year thereafter as may be necessary, 
the State to dedicate funds apportioned to the State under sections 23 
U.S.C. 119 and 23 U.S.C. 133 to correct the issue of noncompliance.

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

    Issued on: May 24, 2013.
Victor M. Mendez,
Administrator, Federal Highway Administration.
[FR Doc. 2013-13526 Filed 6-6-13; 8:45 am]
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