Note: The Section is currently 44(n)
U.S. Department of Transportation
Federal Highway Administration
|Subject:||INFORMATION: Interpretation of Title 23,Section 144(o) Reasonable Costs AssociatedWith the Demolition of Historic Bridges||Date:||April 26, 2001|
|From:||/s/ Original signed by:
James D. Cooper Director
Office of Bridge Technology
Gloria M. Shepherd
Director of Human Environment
|Reply to Attn. of:||HIBT-30|
|To:||Director of Field Services
Our August 18, 1999, memorandum (copy attached) provided an official interpretation of Title 23, Section 144(o) in regards to the Historic Bridge Program. We have received considerable comments in regards to the conflicts that have arisen between Sections 144(o) Historic Bridge Program and Section 133(b), Transportation Enhancement Activities and Historic Bridges. We have discussed these conflicts with the Office of Chief Counsel and they have provided assistance in clarifications that we think can assist the field and the States in working with these two important and apparently conflicting portions of Title 23.
Section 144(o) of Title 23 of the U.S.Code, entitled "Historic Bridge Program," provides for the reasonable costs associated with actions to preserve, or reduce the impact of a project on the integrity of historic bridges. In particular, if as a result of a Federal-aid project, a historic bridge is to be no longer used for motorized vehicular traffic, the costs eligible as reimbursable associated with preserving the bridge are limited to the cost of demolition of the bridge. This limitation of funding for historic bridges would seem to conflict with the use of transportation enhancement funds by States. This memorandum will discuss the FHWA's interpretation of the two sections so that they can be reconciled.
Section 144(o): The Historic Bridge Program
Section 144(o) paragraph (3) entitled "Eligibility" states that:
Reasonable costs associated with actions to preserve, or reduce the impact of a project under this chapter on, the historic integrity of historic bridges shall be eligible as reimbursable project costs under this title (including this section) if the load capacity and safety features of the bridge are adequate to serve the intended use for the life of the bridge; except that in the case of a bridge which is no longer used for motorized vehicular traffic, the costs eligible as reimbursable project costs pursuant to this subsection shall not exceed the estimated cost of demolition of such bridge. Section 144(o) paragraph (4)(B) also addresses the demolition issue.
Costs incurred by the State to preserve the historic bridge including funds made available to the State, locality, or private entity to enable it to accept the bridge, shall be eligible as reimbursable project costs under this chapter up to an amount not to exceed the cost of demolition. Any bridge preserved pursuant to this paragraph shall thereafter not be eligible for any other funds authorized pursuant to this title.
Section 133(b): Transportation Enhancement Activities and Historic Bridges
"Transportation Enhancement Activities" (TE's) are one of the twelve categories of eligible projects in the Surface Transportation Program set forth in 23 U.S.C. § 133(b). Included in the definition of TE at 23 U.S.C. § 101(35) is "historic preservation, and the rehabilitation and operation of historic transportation buildings, structures, or facilities." The States have complete discretion in determining their TE projects.
Conflict Between 144(o) and 133(b)
The Historic Bridge Program, added to the U.S.Code in 1987 by the STURRA, consists of five subsections, two subsections of which are quoted above. Subsection 144(o)(3), the one entitled "Eligibility", puts a definite cap upon the amount of title 23 funds that can be expended on a historic bridge closed to motorized vehicular traffic. That cap is the cost of demolishing the bridge. The next subsection 144(o)(4), "Preservation," forecloses the use of other title 23 funds for a historic bridge beyond the cost of demolition. It says, "Any bridge preserved pursuant to this paragraph shall thereafter not be eligible for any other funds authorized pursuant to this title." Subsection 144(o)(4) then sets forth a particular condition ("any bridge preserved pursuant to this paragraph") that forecloses the use of any other title 23 funds. Thus, once a State uses §144 funds on a historic bridge, it can no longer return to FHWA to ask for more funds for the bridge. The use of the word "thereafter" is important. If other federal-aid highway funds are used on the historic bridge before §144 funds are used, the prohibition does not come into effect. If §144 funds are used initially, however, TE funds may not be used on the bridge thereafter. To illustrate the difference, let us take the example of a State using $100,000 of TE funds to preserve a historic bridge. A few years go by, and the bridge has deteriorated to the point that the State wants to use §144 funds to replace it. The State can offer a responsible party §144 funds up to the cost of demolition of the bridge (e.g., $400,000) for preservation. The TE funds are not subtracted from the $400,000. If, however, a State first used §144 funds to preserve a bridge up to the cost of demolition (here, $400,000), the State cannot later come to the FHWA for title 23 funds, including TE funds, for the bridge. The explicit prohibition in §144(o)(4) would forbid such a course of action.
If a State uses §144 bridge funds up to the cost of demolition on a historic bridge first, the State cannot later use other title 23 moneys for the bridge. If the State uses TE funds on the bridge first, however, it may then use the §144 funds later, up to the cost of demolition. We realize that this policy, the result of meshing two separate sections passed by two different Congresses, is not completely satisfying. When one section is very broad and the other is very limiting, however, it is difficult to reconcile them.
If you have questions or you need clarification of our determination, please contact Mr. Raymond J. McCormick at (202) 366-4675 or Mr. Harold Peaks (202) 366-1598.