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Audit: FHWA Missing Rule Deadlines

Tuesday, September 9, 2014

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As America's two-year transportation bill ticks toward expiration, the Federal Highway Administration is still years behind on implementing some of its required bridge safety and funding provisions, according to a new audit.

Specifically, FHWA is lagging on two rulemakings regarding asset and performance management, potentially delaying states' implementation of key performance and accountability requirements by at least a year, the Office of Inspector General's Audit Report found.

The audit, requested by the ranking member of the House Committee on Transportation and Infrastructure, was conducted to assess FHWA's actions in response to bridge safety provisions in the Moving Ahead for Progress in the 21st Century Act (MAP-21) and previous bridge report recommendations.

FHWA audit report
©iStock / gladassfanny

A new audit says FHWA is behind on addressing several provisions of MAP-21, including rules for asset and performance management. 

MAP-21 was signed into law July 6, 2012. While MAP-21 is a two-year funding bill that expires at the end of fiscal year 2014, it includes deadlines beyond its legislative timeframe.

Halfway There

Of the 24 actions identified to implement MAP-21 bridge safety and funding provisions, FHWA has completed just 12, the audit found.

"Since 2006, FHWA has completed important actions to address our previous audit recommendations and new MAP-21 requirements. However, MAP-21 presents several significant challenges for FHWA in the coming years—especially its emphasis on performance and accountability," the audit stated. 

Two of the actions in progress for rulemakings regarding asset management and performance management "are behind schedule and may delay States' implementation of key performance and accountability requirements by at least a year later than specified in MAP-21," according to the audit.

Based on FHWA's current schedule, states will start implementing risk-based asset management plans by Oct. 1, 2016—one year after MAP-21 intended. These plans, which the audit calls "a key component of MAP-21," will include strategies for projects to achieve state-established targets for National Highway System asset condition and performance.

Under MAP-21, a final rule for the asset management plans was to be issued by April 1, 2014; however, FHWA still has yet to issue a Notice of Proposed Rulemaking, which it plans to do Oct. 24.

Synchronized Rulemaking

MAP-21 also required FHWA to initiate the rulemaking process to develop national highway performance management measures by April 1, 2014. Some of these measures are associated with bridge conditions and the states will use them to establish performance targets in conjunction with their asset management plans.

Currently, FHWA plans to issue three separate rulemakings to establish these performance measures, making them all effective April 1, 2015.

According to the OIG, FHWA is also lagging behind on MAP-21 rulemakings including:

  • Funding penalties for states with structurally deficient National Highway System bridges; and
  • Processes to establish risk-based bridge prioritization.

Past Recommendations Still Open

Since 2006, the OIG has issued three reports with 16 recommendations to improve FHWA's oversight of bridges.


"Since 2006, FHWA has completed important actions to address our previous audit recommendations and new MAP-21 requirements. However, MAP-21 presents several significant challenges for FHWA in the coming years—especially its emphasis on performance and accountability," the audit stated.

The recommendations that remain open are:

  • Collect and analyze expenditure data to identify states' activities to improve the condition of deficient bridges (recommended in 2010);
  • Report on the effectiveness of states' efforts to improve bridges based on that analysis and provide and evaluation of progress made in achieving performance targets (recommended in 2010); and
  • Incorporate the American Association of State Highway and Transportation Officials' updated standards into the National Bridge Inventory System to require the collection and submittal of element-level data and implement a plan to collect the data (recommended in 2009).

5 New Tasks

The latest audit also came with five new recommendations:

  • Update guidance to address funding eligibility of historic bridges and replacement of destroyed bridges and ferry boat service;
  • Establish a target date to complete the asset management plan final rule;
  • Establish a target date to complete a Federal Register Notice describing the establishment of a risk-based bridge prioritization process;
  • Include a summary of the cost to replace structurally deficient bridges as part of FHWA's required bridge inventory report to Congress; and
  • Update FHWA's National Bridge Inventory guidance to clarify expectations for data quality and the process for ensuring that identified errors are resolved in a timely manner, including timeframes for error resolution.

The draft report was handed over to FHWA in July. FHWA responded that it had completed the first and fifth recommendations; partially concurs with the second; and will implement the third and fourth by Jan. 31, 2015.

However, the OIG said that it needs additional information from FHWA before it will close the first and fifth recommendations. Since FHWA did not describe its rationale for partial concurrence with the second recommendation, it will also remain open and unresolved.

Modified Value Engineering

Although not addressed in the recent audit, FHWA made good last week on issuing its final rule that loosens requirements states must meet for federal funding.

The final rule, published in the Federal Register Sept. 5, modifies the regulations that govern value engineering analyses in the planning and development of highway improvement projects.

FHWA value engineering

FHWA published its final rule Sept. 5 to increase thresholds that trigger a value engineering analysis.

The final rule becomes effective Oct. 6; however, states have followed the new thresholds since MAP-21 was implemented two years ago.

Thresholds Doubled

Part of MAP-21 modified the requirements for the value engineering program by:

  • Increasing the project monetary thresholds that trigger an analysis to $50 million or more for projects on the National Highway System that federal aid Highway Program Funding assistance;
  • Increasing the value engineering threshold to $40 million or more for bridge projects on the National Highway System that receive federal assistance;
  • Removing the value engineering analysis requirements for design-build projects; and
  • Defining the requirements for a State Transportation Agency to establish and sustain a value engineering program.

Since the 90s, highway projects receiving federal aid were required to perform the analysis if the project cost $25 million or more; the bridge project threshold was set at $20 million or more.

States performed analyses on 378 highway projects in fiscal year 2011 and implemented 1,224 value engineering recommendations for a total savings of $1 billion in construction costs, according to FHWA. An additional $38.3 million was saved through value engineering change proposals submitted by contractors.


Tagged categories: Bridges; Department of Transportation (DOT); Federal Highway Administration (FHWA); Funding; Laws and litigation; North America; Program/Project Management; Roads/Highways; Transportation

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