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###### Department of Transportation

###### Federal Highway Administration

          - 23 CFR Part 650
          - [FHWA Docket No. FHWA-2009-0074]
          - RIN 2125-AF33

# AGENCY:

Federal Highway Administration (FHWA), DOT.

# ACTION:

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

# SUMMARY:

The American Association of State Highway and Transportation Officials (AASHTO) Manual for Condition Evaluation of Bridges, 1994, second edition (also referred to as “the Manual”), together with the 2001 and 2003 Interim Revisions, is incorporated by reference in 23 CFR part 650, subpart E, approved by the Federal Highway Administration, and recognized as a national standard for bridge inspections and load rating. The purpose of this notice is to update the incorporation by reference language to incorporate the most recent version of the AASHTO Manual, now known as The Manual for Bridge Evaluation, First Edition, 2008.

# DATES:

Comments must be received on or before September 30, 2009.

# ADDRESSES:

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

# FOR FURTHER INFORMATION CONTACT:

Mr. Thomas Everett, Office of Bridge Technology, (202) 366-4675; or Mr. Robert Black, Office of the Chief Counsel (202) 366-1359, Federal Highway Administration, 1200 New Jersey Ave., SE., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.

# SUPPLEMENTARY INFORMATION:

## Electronic Access and Filing

                    You may submit or retrieve comments online through the Federal eRulemaking portal at:                     *http://www.regulations.gov.*                     Electronic submission and retrieval help and guidelines are available under the help section of the Web site. It is available 24 hours each day, 365 days each year. Please follow the instructions. 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*.                

## Background

This NPRM is being issued to provide an opportunity for public comment on the proposed revision to the incorporation by reference of the AASHTO Manual in the National Bridge Inspection Standards (NBIS).

The Manual for Bridge Evaluation, First Edition (MBE) was adopted by the AASHTO Highways Subcommittee on Bridges and Structures in 2005. The MBE combines The Manual for Condition Evaluation of Bridges, Second Edition, and its 2001 and 2003 Interim Revisions with the Guide Manual for Condition Evaluation and Load and Resistance Factor Rating (LRFR) of Highway Bridges, First Edition, and its 2005 Interim Revisions. Revisions based on approved agenda items from annual AASHTO Subcommittee meetings in 2007 and 2008 are also incorporated into the MBE.

The MBE, First Edition, 2008, supersedes The Manual for Condition Evaluation of Bridges, Second Edition, and the 2001 and 2003 Interim Revisions, which are currently incorporated by reference at 23 CFR 650.317. The MBE offers assistance to bridge owners at all phases of bridge inspection and evaluation. The Manual serves as a standard and provides uniformity in the procedures and policies for determining the physical condition, maintenance needs, and load capacity of the Nation's highway bridges.

Because the information incorporated by reference at 23 CFR 650.317 has been superseded, the FHWA desires to update the NBIS regulation to reflect the latest information contained in the AASHTO documents. The FHWA also proposes to update the definition for “AASHTO Manual” to reflect the updated document.

## Rulemaking Analysis and Notices

### Executive Order 12866 (Regulatory Planning and Review) and U.S. DOT Regulatory Policies and Procedures

                    The FHWA has determined that this action would not be a significant regulatory action within the meaning of Executive Order 12866 or significant within the meaning of U.S. Department of Transportation regulatory policies and procedures. These changes are not anticipated to adversely affect, in any material way, any sector of the economy. The FHWA believes that the incorporation of the MBE within the NBIS regulation will greatly improve consistency and uniformity in the                           ( print page 44794)                        application of bridge inspection and load rating procedures. In addition, these changes would not create a serious inconsistency with any other agency's action or materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Therefore, 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 these changes on small entities and has determined preliminarily that this action would not have a significant economic impact on a substantial number of small entities.

### Unfunded Mandates Reform Act of 1995

This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48, March 22, 1995). This action would not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $128.1 million or more in any one year (2 U.S.C. 1532).

### Executive Order 13132 (Federalism)

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 dated August 4, 1999, and the FHWA has determined that this action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this rulemaking will 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, and believes that it would not have substantial direct effects on one or more Indian Tribes; would not impose substantial direct compliance costs on Indian Tribal governments; and would not preempt Tribal law. Therefore, a Tribal summary impact statement is not required.

### Executive Order 13211 (Energy Effects)

The FHWA has analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a significant energy action under that order because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 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 for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that this action does not contain collection information requirements for purposes of the PRA.                

### Executive Order 12988 (Civil Justice Reform)

This action meets applicable standards in sections 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)

The FHWA has analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this action would not concern an environmental risk to health or safety that may disproportionately affect children.

### Executive Order 12630 (Taking of Private Property)

The FHWA does not anticipate that this action would affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

### National Environmental Policy Act

The agency has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has determined that it would not have any effect on the quality of the environment.

## 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 recordkeeping requirements

Issued on: August 19, 2009.

Victor M. Mendez,

Federal Highway Administrator.

In consideration of the foregoing, the FHWA proposes to amend title 23, Code of Federal Regulations part 650 as follows:

# PART 650—BRIDGES, STRUCTURES, AND HYDRAULICS

# Subpart C—National Bridge Inspection Standards

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*.; sec. 4(b) of Pub. L. 97-134, 95 Stat. 1699 (1981); sec. 161 of Pub. L. 97-424, 96 Stat. 2097, at 3135 (1983); sec. 1311 of Pub. L. 105-178, as added by Pub. L. 105-206, 112 Stat. 842 (1998); 23 CFR 1.32; 49 CFR 1.48(b); E.O. 11988 (3 CFR, 1977 Comp., p. 117); Department of Transportation Order 5650.2, dated April 23, 1979 (44 FR 24678).                        

2. Amend § 650.305 by revising the definition of “American Association of State Highway and Transportation Officials (AASHTO) Manual” to read as follows:

§ 650.305 

* * * * *

*American Association of State Highway and Transportation Officials (AASHTO) Manual.*                             “The Manual for Bridge Evaluation,” First Edition, 2008, published by the American Association of State Highway and Transportation Officials (incorporated by reference,                             *see*                             § 650.317).                        

* * * * *

3. Revise § 650.317(b) to read as follows:

§ 650.317 

* * * * *

                            (b) The Manual for Bridge Evaluation, First Edition, 2008, AASHTO, incorporated by reference approved for §§ 650.305 and 650.313, is available for purchase from the American Association of State Highway and Transportation Officials, Suite 249, 444 N. Capitol Street, NW., Washington, DC                                   ( print page 44795)                                20001. The materials may also be ordered via the AASHTO bookstore located at the following URL:                             *http://www.aashto.org/​aashto/​home.nsf/​FrontPage.*

[FR Doc. E9-20713 Filed 8-28-09; 8:45 am]

BILLING CODE 4910-22-P