Susan Martinovich, P.E., President Director, Nevada Department of Transportation John Horsley, Executive Director 444 North Capitol Street NW, Suite 249, Washington, DC 20001 (202) 624-5800 Fax: (202) 624-5806 • www.transportation.org April 1, 2011 Mr. Robert S. Rivkin General Counsel U.S. Department of Transportation 1200 New Jersey Avenue, S.E. Washington, D.C. 20590-0001 RE: Docket No. DOT-OST-2011-0025 Regulatory Review of Existing DOT Regulations Dear Mr. Rivkin: The American Association of State Highway and Transportation Officials (AASHTO) represents the departments of transportation (DOTs) in the fifty States, the District of Columbia and Puerto Rico. Based on information received from our State DOTs, the following are key regulations that were identified as ones which are outmoded, ineffective, insufficient or excessively burdensome. We respectfully urge your review of our recommendations for modification or elimination of these regulations. In addition, I have attached a supplemental list of additional regulations that are worthy of your consideration for modification or elimination. TIP Amendment Process Title 23 USC §134 and 135 The TIP/STIP amendment/modification process is excessively lengthy and creates voluminous paperwork even when making only a minor change for project costs or funding sources. Furthermore, TIP information tends to be at least a year old by the time the federal reviewer approves each individual project. Recommendation: Eliminate the modification process for projects where the cost changes or funding source changes are minor. For example, allow cost/funding source changes within 20% of the TIP/STIP-approved project cost, without triggering the TIP/STIP amendment/modification process. Maximize the Opportunity to Overlap Processes: Planning and NEPA Linkages • 23 CFR Part 450, Appendix A. Page |2 A long-standing dilemma for transportation agencies is the tendency for decisions made in the planning process to be re-opened in the NEPA process – in essence, starting over – rather than using the planning decisions as the starting point for the NEPA review. Although some progress was made in SAFETEA LU and FHWA regulations, there remains a deeply engrained reluctance to adopt the mode and corridor decisions from the planning process as the basis for the Purpose and Need in NEPA documents. Recommendation: FHWA should establish a presumption that decisions made in the planning process on corridor, facility type, and mode will be adopted in the NEPA process. Programmatic approaches • 23 CFR 771 The development and application of programmatic solutions to replace project by project analysis, documentation and decision making supports efficient project delivery and environmental stewardship. While extensive progress has been made by states to implement programmatic solutions, the opportunity to achieve major streamlining benefits by stronger promotion of programmatic solutions shows great promise. For example, programmatic criteria for categorical exclusions are often not broad enough to cover all undertakings with a demonstrated history of not having significant environmental impacts. Recommendations: • Include clear regulatory language indicating that programmatic approaches are the standard way of conducting business. • Provide maximum flexibility in the development of programmatic categorical exclusions. • Expand funding and support for “in-lieu” fees for conservation banking and programmatic mitigation for natural and cultural resource impacts. • Allow the states, through programmatic agreements, to conduct legal sufficiency reviews. Remove barriers to delegation of the Environmental review process • 23 CFR 773 The delegation programs have been implemented by USDOT in a way that makes many States highly reluctant to seek delegation. There is one major factor that discourages States from seeking delegation under the existing programs. FHWA has determined that States can only assume USDOT’s responsibilities if the State gives up the ability to undertake design and right- of-way activities during the NEPA process on an at-risk basis (i.e., with their own funds). For many States, the flexibility to advance these activities in parallel with NEPA is a critical project- delivery tool; because they are unwilling to give up that flexibility, they do not pursue delegation. Recommendation: FHWA should allow States to assume USDOT responsibilities without reducing flexibility to acquire right-of-way and perform design work prior to the completion of the NEPA process. Advanced Right-of-Way Acquisition • 23 CFR 710.501; 23 CFR 710.503; 23 CFR 710.203; 23 CFR 710.305 Page |3 Current federal environmental restrictions make it extremely difficult to identify and preserve potential future transportation corridors. Until the NEPA process is completed for a transportation project, Federal funds can only be used to acquire individual parcels that meet the definition of “hardship” or “protective” acquisitions. Because these exceptions are narrow, it is difficult to protect a continuous corridor – or even to simply acquire strategic parcels from willing sellers – until after the NEPA process is completed for the entire project, which is not nearly enough time to take full advantage of the potential for reduced cost and reduced community disruption. In addition, corridors must be part of a fiscally-constrained Long-Range Plan in order to use corridor preservation funds. However, due to the large size, scope, and cost of some corridors, State DOTs find it very difficult to include entire corridors in their Long-Range Plan while keeping it fiscally constrained. Requiring entire corridors to be included in a fiscally-constrained Long-Range Plan creates a burden for the State DOTs resulting in limited use of corridor preservation. Recommendations: 1. Allow states to use Federal or state funds to acquire right-of-way well in advance of project construction if the viability of a project would otherwise be threatened. Having appropriate right-of-way in advance does not compel a project to be built—but not having the necessary right-of-way can create significant disruption and/or kill a project. • Modify 23 CFR 710.501 and/or expand 23 CFR 710.503 to allow more flexibility for the use of federal funds “at risk” for corridor preservation, which could then be paid back if the land is not used for the anticipated project. In addition, modify language in 23 CFR 710.203 and 23 CFR 710.305 to allow for the use of federal funding prior to the NEPA document being completed. Since this funding is “at risk” and will be paid back if the acquired land is not used in the final project, 23 USC 108(2)(c)(2)(F) could be interpreted broadly that actual Federal “participation” does not occur until after the NEPA document is complete. 2. Specify that entire corridors do not need to be part of a fiscally constrained Long-Range Plan in order for corridor preservation funds to be used. Use of Proprietary Products • 23 CFR 635.411 AASHTO, as well as a number of other organizations (ATSSA, ARTBA, AGC, etc.) have concerns that current federal regulations in 23 CFR 635.411, “Material or product selection,” and the current law in 23 USC 112, “Letting of contracts,” impose broad restrictions on the states’ ability to utilize proprietary methods, materials, and equipment on federal-aid projects and, as a result, limit the development of new products and discourage innovation. As currently regulated, proprietary products are only allowed on federal-aid construction contracts under specific circumstances. The State DOTs’ hands are tied when trying to use these products because of “low-bid” requirements. Currently, a new proprietary product that is developed and placed on the market cannot easily be used in highway construction until a “comparable” product is produced. The inability of government agencies to specify a particular product which currently has no “equal” limits innovation by essentially “lowering the bar” for all products in order to artificially produce competition within the market. Often, engineering judgment in the areas of safety and technology is trumped by an accounting policy that is being administered across-the-board without consideration for potential safety improvements and returns on the investment. Page |4 Recommendation: Amend 23 CFR 635.411 to allow greater flexibility for using proprietary products in Federal-aid contracts by allowing the Secretary of Transportation to approve the use of Federal funds in the payment of patented or proprietary items when the State DOT certifies, based on the documented analysis and professional judgment of qualified State transportation officials, that: • the patented or proprietary item will provide safety, economic, or other benefits along one or more sections of roadway; • no equally suitable alternative item exists; and • any patented or proprietary item specified pursuant to this certification will be available in sufficient quantity to complete the project identified in bid documents. MUTCD Revisions AASHTO is concerned with several provisions of the most recent version of the MUTCD. We appreciate that FHWA has been open to hearing the states’ views regarding their concerns with these provisions. Specifically, the flexibility granted to states and local agencies to use "engineering judgment" in the field has been significantly reduced. Previous versions of the MUTCD recognized the need for flexibility by allowing deviation from a standard on the relatively rare occasion when engineering study and judgment determined that the safety and movement of road users would be improved by such deviation. Such is not the case with the 2009 MUTCD. In addition, AASHTO is concerned that the standards are significantly more prescriptive than in prior versions. The 2009 MUTCD includes approximately 44% more mandatory provisions than the previous edition. This can lead to millions of dollars in excess costs for state and local governments and some private entities, such as shopping mall operators. Examples of problematic requirements include: • Resizing of overhead sign structures to handle questionable message modifications; • Increasing the number of studies prior to changes in horizontal curve warning signs; • Creation of miscellaneous regulatory sign requirements (e.g., "Higher Fines" sign/plaque); • Adaption of new procedures for the evaluation and measurement of sign retro-reflectance and, subsequently, meet minimum values. In addition, the FHWA has demonstrated a recent trend of imposing increasingly specific compliance dates for various rules that will subject states to increased cost without necessarily improving safety. Recommendations: • Allow states the ability to use "Engineering Judgment" by restoring the definitions of "Engineering Judgment," "Engineering Study," and "Standard" to the definitions used before the 2009 MUTCD. • Delete the statement added to Section 1 A.13: "Standard statements shall not be modified or compromised based on engineering judgment or engineering study." In addition, restore the statement previously contained in Section 1A.09, "...while this Manual Page |5 provides Standards, Guidance, and Options for design and application of traffic control devices, this Manual should not be considered a substitute for engineering judgment." • Either eliminate, or at least reduce to Guidance Provisions, those Standards that are nonessential or overly prescriptive. • Eliminate or, at a minimum, significantly extend compliance dates in the MUTCD, which require replacement of traffic features before the end of their useful life. I appreciate the opportunity to provide these comments and recommendations on behalf of AASHTO. Sincerely yours, John Horsley Page |1 AASHTO Supplemental Comments Regulatory Review of Existing DOT Regulations Planning Bicycle and Pedestrian Provisions of Federal Transportation Legislation • Title 23 USC §217 (g) 23 USC Section 217(g) states, in part, the following: (g) Planning and Design.‐‐ (1) In general.‐‐Bicyclists and pedestrians shall be given due consideration in the comprehensive transportation plans developed by each metropolitan planning organization and State in accordance with sections 134 and 135, respectively. Bicycle transportation facilities and pedestrian walkways shall be considered, where appropriate, in conjunction with all new construction and reconstruction of transportation facilities, except where bicycle and pedestrian use are not permitted. FHWA Guidance for Bicycle and Pedestrian Provisions of Federal Transportation Legislation, updated on April 4, 2007, states the following: "Due consideration" of bicycle and pedestrian needs should include, at a minimum, a presumption that bicyclists and pedestrians will be accommodated in the design of new and improved transportation facilities. In the planning, design, and operation of transportation facilities, bicyclists and pedestrians should be included as a matter of routine, and the decision to not accommodate them should be the exception rather than the rule. There must be exceptional circumstances for denying bicycle and pedestrian access either by prohibition or by designing highways that are incompatible with safe, convenient walking and bicycling. The law clearly states that bicycle and pedestrian facilities shall be considered where appropriate. However, FHWA guidance has embellished the law from “consider where appropriate” to a must include condition unless not doing so can be justified. Furthermore, it states that “there must be exceptional circumstances” for not providing such facilities. This regulation presents an undue burden on states to justify exceptional circumstances when not including provisions for bicyclists and pedestrians in a project. Recommendation: FHWA should rescind their guidance on the meaning of “due consideration.” Revenue and Cost Documentation • 23 CFR 450 Page |2 23 CFR Part 450 requires revenues and costs in MPO long range transportation plans (LRTP), MPO transportation improvement programs (TIP) and the statewide transportation improvement program (STIP be expressed in “year of expenditure dollars.” No such requirement is contained in Title 23 USC. Recommendations: The use of either “year of expenditure dollars” or “present day dollars” for both revenues and costs is technically correct and both approaches are widely used in financial analyses. The preferred approach should be a technical decision best made by the MPO in cooperation with the state. Signing of ROD or FONSI and TIP/STIP • 23 CFR part 450 subpart C The regulations require that “all regionally significant projects requiring an action by FHWA or FTA” be included in the TIP/STIP. The regulations also state that “ the STIP shall include for project or phase (e.g. environmental/NEPA…)” descriptive material, cost, etc.. Since one of the phases is environmental /NEPA the culmination of that phase with a ROD or FONSI signature should be done if the cost for that phase was included in the STIP. A memo written by FHWA states that a ROD or FONSI cannot be signed unless the next phase of the project is listed in the TIP/STIP with funds identified in addition to being listed in the fiscally constrained plan. This seems to require that at least 2 phases be included in the TIP/STIP. This is an interpretation of the regulations that has created hardship for DOT’s trying to advance projects with very constrained funding streams where the project may have to be implemented in phases over a long period of time. Recommendations: Provide new guidance on the interpretation of signing of ROD or FONSI without having additional project phases included in the TIP/STIP. Public Meetings 23 CFR part 450.210 The regulations state that “to the maximum extent practicable ensure that public meetings are held at convenient and accessible locations and times” – holding traditional public meetings for planning has been relatively ineffective as a means for obtaining public involvement or comment. A later section of the regulations encourages use of electronic means for providing public information, but the requirement for public meetings still stands. Recommendation: This is outdated for most areas and should be done at the discretion of the DOT or MPO and the approaches to be used should be documented in the DOT or MPO public involvement plan but not dictated at the Federal level. Page |3 Integrating Long Range Plans 23 CFR part 450 subparts B and C The regulations require that many areas be addressed in the Statewide long range plan including safety, transit, rail, security, aviation, freight, and bike/ped. Varying guidelines from FHWA, FTA and FRA set the framework for these separate documents resulting in a fragmented approach that creates silos instead of integration. Recommendation: The regulations could be re‐structured to reflect a “one DOT” and a more comprehensive approach to transportation planning. FHWA and FTA Financial Systems, Timelines, etc. No specific law or regulation Projects funded under both FTA and FHWA programs must be reflected in states’ STIPs. The two modal administrations have very different processes, terminology, timelines, and in some cases, preferences for how projects are represented in STIPs. This requires states to spend extra time weeding through two different and distinct sets of requirements. This is particularly problematic with the requirements that revolve around financial and information systems and we are often forced to hand enter project data and to specially manipulate data to wedge FTA projects into STIPs. The same planning laws apply to both highway and transit projects yet requirements associated with them vary by modal administration. Recommendation: Processes, timelines, information systems, and other process‐related requirements imposed by all modal administrations should be the same. Consistency in the requirements of all federal modal administrations will save MPOs and state DOT considerable time and reduce costs. NEPA and Environmental Review Simplify the Section 6002 environmental review process • SAFETEA‐LU Environmental Review Process Final Guidance, November 15, 2006 • 23 CFR 771 Remove unnecessary paperwork steps and clarify and/or strengthen provisions that will provide additional streamlining benefits. Consultation on Methodology and Level of Detail. Section 6002 provides that "the lead agency also shall determine, in collaboration with participating agencies at appropriate times during the study process, the methodologies to be used and the level of detail required in the analysis of each alternative for a project." Many FHWA division offices interpret this provision to mean that State DOTs must conduct additional agency coordination for almost any change in the project’s methodology. This requirement Page |4 increases time and cost with little added value or benefit to the environmental review process. o Recommendation: FHWA should clarify that the requirement for agency consultation on issues of "methodology and level of detail" should be conducted during the scoping phase of the project, when methodologies are being developed. Additional consultation would only be necessary for large changes in project methodologies and/or level of detail. Preferred Alternative to Higher Level of Detail. Section 6002 allows the preferred alternative, once it has been identified, to be developed to a higher level of detail. In concept, this is an important streamlining tool. However, the use of this flexibility has been limited by FHWA and FTA in their Section 6002 guidance, which requires a State to obtain FHWA or FTA authorization on a project‐by‐project basis to advance the preferred alternative to a higher level of detail. As a result, the streamlining potential of this provision is still largely untapped. o Recommendation: FHWA should allow state to develop the preferred alternative to a higher level of detail without requiring FHWA’s individual, project‐by‐project approval. The requirements for developing the preferred to a higher level of detail should be defined in standard procedures so that individual project‐level approval is not needed. Coordination Plan and Schedule. Section 6002 requires the lead agency to establish a "coordination plan" for a project, and provides that the plan "may" include a schedule. FHWA has effectively required inclusion of a schedule in all coordination plans. While agency coordination clearly is an important aspect of streamlining, the "coordination plans" themselves have become more of a paperwork exercise than an effective tool for improving coordination. Many states have adopted plans and procedures for inter‐ agency coordination prior to the implementation of SAFETEA‐LU. Preparing an additional project‐specific coordination plan often adds little value, and becomes just another paperwork burden, when effective program‐wide coordination procedures are already in place. The coordination plan requirement should be amended to allow a State DOT to meet this requirement by adopting program‐wide coordination procedures, rather than developing a separate coordination plan each time an EIS is prepared. Designating One Lead USDOT Agency • 23 CFR 771 Transportation projects are becoming increasingly multimodal. These projects serve an important public need by ensuring that travel demand needs are met by the appropriate transportation mode. However, US DOT’s modal administrations have varying priorities, processes and timelines for completing projects. These variations lead to unnecessary project delay. Under this structure, State DOTs must go through multiple review, approval and revision processes for each project document and decision. Recommendation: Page |5 FHWA should work with other DOT agencies to establish one USDOT agency as lead agency to approve plans, studies and/or projects with multiple agency involvement. Other impacted USDOT administrations would then participate as cooperating agencies. Engineering Highway Bridge Program Flexibility • 23 CFR 650.409; 23 CFR 650.405(b)(1); 23 CFR 650.409; 23 CFR 650.413 The Highway Bridge Program is commonly known to be one of the most restrictive funding sources within the federal funding program. The addition of flexibility to the provisions within this program would allow for better overall management of the nation’s bridges and structures. Recommendations: 1. Change Federal eligibility rules for the Highway Bridge Program (HBP) to allow use of HPB funds for bridge deck rehabilitation or replacement when only the deck is structurally deficient, and to categorize rigid overlays as a preventive maintenance activity. These activities are often conducted as art of a larger bridge management system and help to prevent quicker deterioration of the structure underneath the bridge deck. • A broader interpretation of “structurally deficient and functionally obsolete bridges” within 23 USC 144(d)(3) could be used to determine eligibility for the use of HBP funds on portions of bridges that are structurally deficient and functionally obsolete, such as the bridge decks. In addition, 23 CFR 650.409 states that the “sufficiency rating will be used as a basis(emphasis added) for establishing eligibility and priority for replacement or rehabilitation…”, but it does not appear to restrict funding to only these bridges. In general, the current restrictions prevent the use of HBP funds for more systematic, asset‐management type approaches to bridge preservation, which have been shown to be more beneficial and economical overall. 2. HBP funds can only be used for the replacement of a structure. However, there are situations where a new structure on a new alignment would alleviate pressure on, and give additional service life to, an existing structure. Currently, HBP funding is not eligible for anything but the replacement of an existing structure. • Clarify 23 CFR 650.405(b)(1), which defines “Replacement” as “Total replacement of a structurally deficient and functionally obsolete bridge with a new facility constructed in the same general traffic corridor.” It appears that constructing a new structure on new alignment is already allowed in the regulations, but not in standard practice. 3. Use of HBP funding is tied to the National Bridge Inspection System (NBIS) rating system, which has its own set of problems. Currently, a structure must have a Page |6 poor rating prior to programming a project. This means a structure is already in distress or the programming becomes a numbers game. There is some value in the assurance that the “worst is fixed first,” but states should be allowed to develop and program bridge work on a systematic basis with minimal added NBIS criteria. • As noted above, 23 CFR 650.409 states that the “sufficiency rating will be used as a basis [emphasis added] for establishing eligibility and priority for replacement or rehabilitation…”, but it does not appear to restrict funding to only these bridges. It is recommended that verbiage be added to allow for an asset management approach for using HBP funding. 4. The Federal share of HBP funding is fixed at an 80/20 percentage without regard for project type. It would be beneficial to increase the federal participation for Interstate Bridges to 90/10, like it is for IM funding. It would seem reasonable to consider bridge rehabilitation and replacement on the Interstate to be just as maintenance‐oriented as are the eligible activities for Interstate Maintenance (IM) funds, yet an Interstate Bridge being funded with HBP funds requires a 20% match while the added capacity for the same bridge could be funded with IM revenue at a 10% match. • Modify 23 CFR 650.413 to allow for 90/10 split on Interstate Bridge Projects. Bridge Inspection Frequency • 23 CFR 650.311; 23 CFR, Part 650, Section 650.311 Within 23 CFR 650.311, bridge inspection frequencies are mandated at fixed maximum intervals that are independent of detail types on the bridge, traffic volumes, magnitude of service stresses, age of the structure, and frequency of the loading cycles on the bridge. Newer bridges with improved details and materials that carry low truck traffic volumes should not have the same inspection requirements as older, more heavily traveled bridges. Since damage occurs more rapidly in older structures due to the accumulation of damage with service, the optimum inspection schedule would be more infrequent in the early life of the structure and more frequent in its later years. The engineering community has the ability to develop inspection frequencies that take into account the rate of damage accumulation to provide a defined reliability. A provision that treats all bridges the same, with respect to inspection frequencies, requires states to expend a large amount of resources without significantly improving the safety and reliability of the structures. This diverts funds and resources from those bridges that need additional monitoring to those that have an inherently lower risk of failure through being either lightly traveled or still early in their design lives. A process that utilizes a risk based solution similar to other industries for determining inspection frequencies would allow states to properly focus and apply limited resources to the bridges where the need is greatest. Recommendation: Page |7 Revise 23 CFR, Part 650, Section 650.311 to allow the bridge inspection frequencies to be determined using a risk/reliability based method. Davis‐Bacon Regulations • 29 CFR 3 29 CFR 3, which was issued in 1931, requires submission of payrolls from contractors and subcontractors weekly. This requirement has always been and remains very burdensome. Recommendation: Revise regulations to provide for receipt of certification only, without weekly payrolls, with periodic monitoring of wages paid. Force Account Work 23 USC 112(b) allows the use of the force account method of contracting. However, FHWA’s interpretation of rules [23 CFR 635 Subpart B] governing the use of force account contracting has severely restricted the use when force account work. The law and rules allow force account work when it is determined to be cost effective. 23 CFR 635.204 Determination of More Cost Effective Method or an Emergency establishes the process for making a determination that force account construction is cost effective. Section 635.205 Finding of Cost Effectiveness defines work that is considered to be cost effective for force account construction due to its “inherent nature” or to protect the “rights and responsibilities of the community at large.” The adjustment of railroad or utility facilities are given as examples that are cost effective due to their inherent nature. FHWA has interpreted Section 635.205 Finding of Cost Effectiveness as the only conditions under which work by force account can be allowed. The FHWA interpretation renders Section 635.204(c) moot. FHWA guidance further states that “any noncompetitive construction contract method requires a cost effectiveness determination as well as an evaluation that demonstrates circumstances are unusual and unlikely to recur.” The “unusual and unlike to recur” condition is not supported by statute. 23 CFR 635.204(a) states “Congress has expressly provided that the contract method based on competitive bidding shall be used by a State transportation department or county for performance of highway work financed with the aid of Federal funds unless the State transportation department demonstrates, to the satisfaction of the Secretary, that some other method is more cost effective or that an emergency exists.” The law does not require the state to demonstrate that conditions are unusual and unlikely to recur. Significant time and cost savings can be achieved though a greater allowance of force account contracting in accordance with Section 635.204(c). Page |8 Recommendation: Allow force account contracting when the conditions of 23 CFR 635.204(c) are met. Consistency between Federal Emergency Relief Programs The FHWA Emergency Relief (ER) program, administered by USDOT, and the FEMA assistance program, administered by US Department of Homeland Security, are both set up to assist in road repair after a flood. However, the two federal entities have differences in terminology, organization, process, funding and eligibility, all of which leads to confusion, frustration, and loss of funding by township, county and state governments. An alignment of goals and process between the two federal entities would be extremely beneficial. Examples of these inconsistencies include the following: • TERMINOLOGY: Force Account as defined by FHWA is when a governmental entity does the flood repair work with its own forces and Davis Bacon Wage Rates do not apply. Force Account as defined by FEMA is when a contractor is hired and they must use Davis Bacon Wage Rates and specific FEMA equipment rates. • FUNDING: In order to be eligible for ER funding, a site must have a minimum of $5,000 in damages. In order to be eligible for FEMA funding, there is no minimum amount, but the government entity receives a minimum amount of $60,000. • ELIGIBILITY: ER does not pay for the repair of soft spots due to frost heave; FEMA does pay for repair of soft spots due to frost heave. In addition to the above, two separate teams of inspectors go to each county, one from FHWA and one from FEMA. Both gather information regarding the highway damage. Most county highway staffs are confused by the conflicting documentation requirements and processes. FHWA is looking for estimates of expenses in order to request federal authorization, which may come next year and is reimbursed through the state Department of Transportation; FEMA is looking for receipts and actual expenses in order to immediately process payments directly to the County. Recommendations: 1. Align FHWA and FEMA processes to better match terminology, forms, organization, process, funding and eligibility. 2. Allow one team to gather both FEMA and FHWA road and bridge flood damage data. Emergency Repair Work in Northern States Currently, there is a 180‐day timeframe during which disaster repair work is reimbursable with 100% Federal funding. However, in northern states, the construction season typically ends in early winter (e.g., November) and does not start again until Spring (e.g., April). Thus, when there is a late‐season flood, for example, northern states Page |9 (and counties and cities) are often unable to start significant repair work until the Spring construction season begins. Northern states are losing federal funds due to the fact that they are in the north and construction cannot take place in the winter. In USDOT’s Emergency Relief Manual, Chapter II, Section D, Emergency Repairs vs. Permanent Repairs, p. 23, states the following: c. Federal Share (180‐Day Period) Emergency repairs accomplished within the first 180 days of the disaster occurrence to restore essential traffic, minimize the extent of damage, or protect the remaining facilities may be reimbursed at 100 percent Federal share. The 180‐day time period for 100 percent Federal share is established by 23 U.S.C. 120(e), and the FHWA has no authority to change the time period. It is important to give careful consideration in deciding the beginning of the 180‐day time period. The 180‐day time period is intended to start on the initial day of the disaster occurrence within a particular State. The starting date of a disaster is to be applied on a statewide basis. As previously noted in Chapter I, Section B, Program Overview, permanent repair work is not to be considered emergency repair work for the purpose of establishing the eligible Federal share, and can only reimbursed at 100% if special legislation allows.” Recommendation: Allow seasonal discretion for start dates for the 180‐day period in which Emergency Relief funding is reimbursable with 100% Federal funds in northern states. Delegation of Project Oversight to State DOTs The roles of Federal and State partners within the project delivery process need to be more clearly defined to reduce redundancies and inefficiencies within the project oversight process. As currently structured, there are many duplicative layers of review and oversight within the Federal‐State working relationship that could be reduced or eliminated to improve project delivery speed without sacrificing quality. A typical transportation project design process involves the development of a design by a professional engineering consultant (who ultimately stamps the design plans with his or her professional license), reviews by a State DOT professional engineer, and then further reviews by the Federal Division Office engineer. While each set of reviews provides an opportunity for discussion and refinement, it also can lead to personal and professional differences of opinion, which often lead to changes in the design (or to back‐and‐forth disagreements regarding how to design the project) but do not necessarily add value to the project – just delay. P a g e | 10 The current structure of reviews appears to be a hold‐over from the 1960s and 1970s when FHWA provided needed engineering expertise and guidance to the States, but that was at a time when FHWA was more fully staffed to provide this type of assistance. FHWA is now a much leaner agency, and attempts to continue to provide this level of detailed Federal oversight slows down the project delivery process. The States hire licensed professional engineers to develop project designs, but the layer‐ upon‐layer of review and oversight effectively removes any accountability these design professionals may have when developing their designs. Holding design consultants accountable for their actions and reducing redundant oversight will also help move transportation agencies toward more “performance‐based” design and engineering, which is the natural evolution from the current “prescriptive” (i.e., step‐by‐step) method of design that has been used for the last 50 years. Recommendation: Modify FHWA’s project review process to be more process‐oriented rather than project‐ specific, thus delegating the primary role of project oversight to the State DOTs. Quality Assurance for P3 Projects 23 CFR 637B, "Quality Assurance Procedures for Construction ", and associated TA 6120.3 "Use of Contractor Test Results in the Acceptance Decision, Recommended Quality Measures, and the Identification of Contractor/Department Risks" do a good job of assuring that the public's interests are protected when a transportation project is delivered using the Design‐Bid‐Build or Design‐Build processes that do not include a long‐term maintenance agreement (50 yrs). However, for a Concession or a Public‐Private‐Partnership (P3) contract that requires a 50‐year maintenance agreement, these federal requirements insert the owner into the Concessionaire's daily operations and may increase their risks of being able to enforce the performance standards of the 50‐year maintenance agreement. Recommendation: Eliminate the requirement for the Owner to perform Owner Validation on all materials testing if a long‐term maintenance agreement (50 yrs) is part of the contract and an Independent Engineer (IE) utilizes standard audit process oversight to confirm that the Concessionaire follows their approved quality processes. “Running Tally” of DBE Payments In 1999, the DBE regulations were revised to include a requirement for monitoring and ensuring that work committed to DBEs is actually performed by DBEs. It states that “this mechanism must provide for a running tally of actual DBE attainments (e.g., payments actually made to DBE firms)…”. This section on “running tally” has recently been interpreted during a review by the National Review Team to mean that the DOTs must track payments to all DBEs on a monthly basis. P a g e | 11 We understand the goal is to ensure that the DBEs on the commitment report actually perform that work, but monthly tallies seem onerous and unnecessary. One state collects a certification of payments to each DBE at the end of the contract, which reports total payments paid to each DBE. Payments are compared to each commitment to ensure that the work was actually performed by the DBE. If payment is below 90% of the commitment, the contractor must provide an explanation. If there is not a legitimate reason for the shortfall, the contractor can be assessed liquidated damages for not following the contract provision. States are concerned that the interpretation of “running tally of actual DBE attainments” is being interpreted on such a frequent basis as to not provide significant value for the time and expense spent collecting the information. Recommendation: Remove the reference to “running tally” in 49 CFR 26.37(b), or clarify that the “running tally” does not need to be collected unless there is an issue with prompt payment. Information Collected for DBE Bidders List In 1999, with a major revision of the Disadvantaged Business Enterprise (DBE) Program, each state had to start developing its own DBE goal. 49 CFR 26.11 requires the DOTs to create and maintain a bidders list “for use in helping you set your overall goals.” The regulation requires us to obtain the firm name, firm address, firm’s status as a DBE or non‐DBE, age of the firm, and the annual gross receipts. Many states do not have an easy method of gathering the age and gross receipts of the DBE firms without conducting a survey. In addition, the age of the firm and gross receipts are not a factor in setting overall goals. On September 4, 2004, South Dakota DOT requested a waiver from collecting this information. On July 17, 2006, the request was denied by USDOT general counsel stating that “while you believe the bidders list provision is not productive for your organization, you have not shown that compliance is impractical.” States spend a considerable amount of time each year collecting this information – including verifying addresses, printing surveys, stuffing envelopes, and paying for postage for the surveys – which is of questionable value to the DBE process. Recommendation: Eliminate 49 CFR 26.11(c)(2)(iv) and (v); or modify the regulation to require the collection of firms’ age and gross receipts only if it serves a purpose, such as for use in setting an overall goal. Appalachian Development (APD) Highway System Title 23 USC 106(h) requires that all projects over the cost of $500,000,000 have a project management plan and an annual financial plan. While the intent to oversee and P a g e | 12 manage costly projects is important, the level of detail these plans require is very time consuming. States with projects on the Appalachian Development (APD) Highway System are already required to prepare cost‐to‐complete estimates on periodic bases following federal guidelines. Funding to the states for APD corridors is based on the cost to complete. The federal rules and funding mechanisms in place for APD corridors satisfy the intent of 23 USC 106(h); however, FHWA still requires a separate financial plan that follows an additional set of guidelines in order to satisfy 23 USC 106(h). Exempting APD corridors from the duplicative 23 USC 106(h) requirements will save time and streamline the process. Recommendation: Exempt highways and projects on the Appalachian Development Highway System from the requirements of 23 USC 106(h). OSHA Shear Connectors Policy OSHA recently revoked the policy of a “de minimis violation” for shop‐installed shear connectors. This means that shop‐installed shear connectors are now an automatic safety violation. There are instances where the owner determines that shop installed shear connectors are the correct treatment, but this ruling makes this inappropriate. The issue of safety compliance should remain with the employer to recognize hazards and protect employees from the hazard. Structural members can be installed with shear connectors in a safe manner; it doesn’t seem necessary to specifically restrict a certain feature when it can be accomplished safely, and has been for many years under the previous interpretation. Recommendation: Remove the restriction for shear connector installation, assuming appropriate fall protection is provided to workers. OSHA Fall Protection Requirements OSHA regulations require a railing height for fall protection that exceeds the railing height of many highway bridges across the country; the notable exception being bridge railings designed specifically for pedestrian use. The result is that any person employed and conducting business for his or her employer cannot be within 6 feet of the railing without a positive fall protection system or the employer could be subject to a fall protection violation. This places a burden on State Agencies to provide fall protection for routine bridge inspections, public safety officials, maintenance activities, and some construction‐related activities – any time an individual walks across a bridge and is within 6 feet from the railing they are “at risk.” Recommendation: Allowance should be granted to states to allow some limited activities to take place without supplemental fall protection issues provided it is done so in concert with an Agency developed safety plan. P a g e | 13 Transit Non‐urbanized Area Formula Program Guidance and Grant Application Instructions FTA Circular FTA C 9040.1F; April 2007 derived from 49 USC 53, Section 5311. Formula funds are apportioned to the states under this program. Upon apportionment, these funds are not officially available to the states to use and distribute to sub‐ recipients until the state submits a very detailed grant application to FTA (see circular language below). The state has to wait approximately two months for the grant application to be approved by FTA and over the course of the grant, the state has to submit and wait on amendments to the grant application. This process happens every year. Projects in each grant can take two to three years to complete. At any given time, a State and FTA may have 10 or more grants open that need to be administered by both the State and FTA. In responding to the problems associated with the very lengthy time between when the apportionment is available and the state has an approved grant from FTA, FTA staff will offer “pre‐award authority” as an option. More importantly, this response is not a solution for the extensive burden placed on FTA, the States and the State’s sub‐ recipients to create and administer a detailed grant application every year and to manage amendments over the life of the grant. Recommendations: Redefine the meaning of “program” to include significantly less detail than the “program of projects” as currently defined in the circular. The State’s grant application should define in broad terms how they will make use of the funds and how the State will provide for fair distribution and maximum feasible coordination. For the Secretary to determine fair distribution and maximum coordination he/she does not need detailed information on each sub‐recipient, the exact budget items for each sub‐recipient and the dollar amount associated with each budget item. Once the program is submitted, the grant should be considered automatically approved. Ongoing FTA oversight can determine if the state is making appropriate use of the funds. The states could also submit annual reports to FTA with status of each annual apportionment, including how the apportionment has been allocated and expended by each sub‐recipient. The State should also (as it does now) assure and certify that it will make use of the funds in a way that is compliant with federal regulations. Transit “New Starts” Program P a g e | 14 New Starts is a discretionary capital grant program authorized to fund new or extensions of fixed guideway projects. The New Starts projects are evaluated and rated on a set of defined project justification and financial commitment criteria. A review of the Federal Transit Administration’s (FTA’s) New Starts program should streamline and identify alternative methods of evaluating and rating of projects. Recommendations: With the increase in number of transit projects and growing experience of transit agencies in implementing capital projects, we suggest that FTA start to move away from detailed project reviews and approvals and toward a process and program review model more like that used by the Federal Highway Administration (FHWA). Topics like technical and financial capacity could be assessed on a programmatic level. FTA might make more effective use of its Project Management Oversight (PMO) resources by reviewing a grantee’s various management processes and capabilities, offering suggestions for improvements related to multiple projects in its program, thus avoiding the redundancy, uncertainty and potential delays that result from project‐specific reviews. This approach would not eliminate the need for project reviews in all cases, but it would shift the emphasis of the PMO program toward expert advice and technical assistance. Possible methods to streamline the New Starts review process include: • Collapse the Alternatives Analysis phases required under both NEPA and New Starts. • Use only one point of entry (PE) as opposed to multiple (PE and Final Design). • Eliminate requirement of the pre‐PE submissions, such as the Real Estate plan or Noise and Vibration plans, where risk and cost are yet to be identified and fixed. New Start Transit Projects – Preliminary Engineering New Starts transit projects are held to a different standard by requiring a completed Financial Plan before Phase 1 preliminary engineering can even take place. Accordingly to the sections of law and regulations cited above, a New Starts transit project cannot access any Phase 1 monies until it can be proven that the project is in the local MPO’s fiscally constrained list of projects; and, second that those projects can be fully funded through phase 3 of construction. Developing such a full financing plan requires a fairly accurate estimate of total construction costs – and this kind of estimate is normally one of the outcomes of phase 1 engineering. But if phase 1engineering cannot be funded until full financing through construction has been finalized, transit projects are caught in a catch‐22 situation; and the outcome is that there is no reasonable way to budget a project with any degree of accuracy. Recommendations: Transit projects should be afforded the same requirements as with highway projects, in their eligibility to go through preliminary engineering phases before having to have full P a g e | 15 financing in place. New Starts monies should be allowed for phase 1 engineering even if funding through construction has not yet been finalized. By so doing, the project can be taken to a point where an accurate budget can be ascertained and then a financing plan can be adequately developed. In addition, this will make it easier to manage the whole New Starts process from the federal perspective because there aren’t competing regulations to keep track of between highway and transit projects. Aviation Aviation State Block Grant Program – Administrative Costs The Airport and Airways Improvement Act of 1982 was amended in 1989 to provide for a pilot program of state block grants. 14 CFR Part 156 State Block Grant Pilot Program (SBGP) originally allowed only for three states to participate in the program. In 1998 the program was amended to allow ten states to participate. 14 CFR 156 sets out the procedures for a state to apply, grant issuance process, program administration requirements, and state responsibilities and enforcements responsibilities. State program administration costs are ineligible under 14 CFR 156. These are costs that would be normally be incurred by the FAA regional office if the FAA were administering the airport project. Recommendation: Allow 15% for administration of the State Block Grant program and allow up to 25 states to participate in the program. FAA Intra‐Agency Coordination on Guidance Air Traffic Control vs. Airport Development: Different agencies within FAA ‐‐ the Airport Development Group and the Air Traffic Control Group – on occasion, have conflicting design standards, which slows up the process for project development and delivery. Enhance agency coordination and communication is needed. Recommendation: Ensure that FAA is reviewing and providing guidance to these groups to prevent conflicting information going out to airports.
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