[Federal Register Volume 59, Number 55 (Tuesday, March 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6511]


[[Page Unknown]]

[Federal Register: March 22, 1994]


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Part IV





Department of Transportation





_______________________________________________________________________



Coast Guard



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33 CFR Part 116




Alteration of Obstructive Bridges; Proposed Rule
DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 116

[CGD 91-063]
RIN 2115-AE15

 
Alteration of Obstructive Bridges

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to amend the regulations which 
provide guidance for declaring a bridge unreasonably obstructive to the 
free navigation of navigable waters of the United States and the 
procedures for alteration of an obstructive bridge under the Truman-
Hobbs Act, the Bridge Act of 1906, and the Rivers and Harbors 
Appropriation Act of 1899. The proposed amendments clarify and update 
regulations describing the procedures involved and provide additional 
details.

DATES: Comments must be received on or before May 23, 1994.

ADDRESSES: Comments may be mailed to the Executive Secretary, Marine 
Safety Council (G-LRA/3406) (CGD 91-063), U.S. Coast Guard 
Headquarters, 2100 Second Street SW., Washington, DC 20593-0001, or may 
be delivered to room 3406 at the above address between 8 a.m. and 3 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is (202) 267-1477. Comments on collection of information 
requirements must be mailed also to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th Street, 
NW., Washington, DC 20503, ATTN: Desk Officer, U.S. Coast Guard, or 
Office of Management and Budget, 725 17th Street NW., Washington, DC 
20503, ATTN: Desk Officer, U.S. Coast Guard.
    The Executive Secretary maintains the public docket for this 
rulemaking. Comments will become part of this docket and will be 
available for inspection or copying in room 3406, U.S. Coast Guard 
Headquarters.

FOR FURTHER INFORMATION CONTACT:
Ms. Marcia L. Waples, Chief, Alterations, Drawbridges, and Systems 
Branch (G-NBR-1), at (202) 267-0375.

SUPPLEMENTARY INFORMATION:

Request for Comments

    The Coast Guard encourages interested persons to participate in 
this rulemaking by submitting written data, views, or arguments. 
Persons submitting comments should include their names and addresses, 
identify this rulemaking (CGD 91-063) and the specific section of this 
proposal to which each comment applies, and give a reason for each 
comment. The Coast Guard requests that all comments and attachments be 
submitted in an unbound format suitable for copying and electronic 
filing. If not practical, a second copy of any bound material is 
requested. Persons wanting acknowledgment of receipt of comments should 
enclose a stamped, self-addressed postcard or envelope.
    The Coast Guard will consider all comments received during the 
comment period. This proposal may be changed in view of the comments.
    The Coast Guard plans no public hearing. Persons may request a 
public hearing by writing to the Marine Safety Council at the address 
under ``ADDRESSES''. The request should include reasons why a hearing 
would be beneficial. If it determines that the opportunity for oral 
presentations will aid this rulemaking, the Coast Guard will hold a 
public hearing at a time and place announced by a later notice in the 
Federal Register.

Drafting Information

    The principal persons involved in drafting this document are Ms. 
Marcia L. Waples, Project Manager, and LT Ralph L. Hetzel, Project 
Counsel, Office of Chief Counsel.

Background and Purpose

    There are three primary Federal statutes which contain provisions 
that address the issue of bridges which are alleged to unreasonably 
obstruct navigation. Under section 18 of the Rivers and Harbors 
Appropriation Act of 1899 (33 U.S.C. 502) and section 2 of the Truman-
Hobbs Act (33 U.S.C. 512), and applicable delegation regulations, the 
Commandant of the Coast Guard shall order the alteration of a bridge 
which unreasonably obstructs the free navigation of the navigable 
waters of the United States. Under section 4 of the Bridge Act of 1906 
(33 U.S.C. 494), the same provision applies to bridges over waters 
which are subject to the ebb and flow of the tide and which are used, 
or susceptible to being used, in their natural condition or by 
reasonable improvement as a means to transport interstate or foreign 
commerce.
    Until 1940, paying for the alteration of an obstructive bridge in 
order to render the waters that it traverses reasonably free and 
navigable was, in all cases, the responsibility of the bridge owner. 
Upon passage of the Truman-Hobbs Act, 33 U.S.C. 511-524, partial 
Federal funding of bridge alterations was made available through 
apportionment of the total cost of the alteration between the United 
States and the bridge owner. However, the Truman-Hobbs Act only applies 
to lawful bridges that carry only railroad traffic or both railroad and 
highway traffic, or are publicly-owned highway bridges. Title 33, part 
116 of the Code of Federal Regulations, contains regulations governing 
alteration of bridges which are unreasonably obstructive to free 
navigation of a navigable water of the United States under any of the 
three statutes cited above.
    In response to issues raised by Congress in the fall of 1991 
regarding administration of the Truman-Hobbs Act, the Coast Guard 
reviewed its guidance contained in chapter 6 of the Bridge 
Administration Manual, COMDTINST M16590.5 (series), pertaining to 
bridges eligible for consideration under the Truman-Hobbs Act. The 
Coast Guard also reviewed the implementing regulations contained in 33 
CFR part 116. These reviews were conducted in order to ascertain 
whether the Bridge Administration Manual and the implementing 
regulations reflect, accurately and with sufficient detail, the 
procedures used for determining if a bridge is an unreasonable 
obstruction to navigation and, if so, the process for determining if it 
may be altered under the Truman-Hobbs Act. As a result of this review, 
the guidance set forth in chapter 6 of the Bridge Administration 
Manual, COMDTINST 16590.5 (series), was revised on February 27, 1992, 
in order to clarify and provide additional detail concerning the manner 
in which the U.S. Coast Guard administers the Truman-Hobbs Act.
    The purpose of the proposed amendments is to provide clarification 
of the procedures for determining whether a bridge unreasonably 
obstructs navigable waters, and, if it does, procedures for ordering 
its alteration.

Discussion of Proposed Amendments

    The proposed amendment revises 33 CFR part 116 by adding new 
descriptive language and clarifying, reordering and reformatting 
existing provisions that are still valid. The following is a 
discussion, section by section, of the changes the proposed amendment 
would make.
    Section 116.01 would be enhanced to include a reference to the 
statutes pertaining to obstructive bridges and would address the types 
of bridges that may be considered for alteration under the Truman-Hobbs 
Act. A note would be added to direct the reader to the Bridge 
Administration Manual, COMDTINST 16590.5 (series), for further 
guidance, if desired.
    Section 116.05 would address who can file a complaint, to whom it 
should be sent, and what information it should include.
    Section 116.10 would address the District Commander's procedures 
for acting on complaints, or investigating suspicions related to 
allegedly obstructive bridges. Under the revised provisions, the 
complainant would be encouraged to furnish specific details and 
information to the District Commander in writing to support an 
allegation of unreasonable obstruction of navigation.
    Section 116.15 would provide for a public hearing to determine if 
there is a need for an alteration and if so, the extent of the 
alteration needed.
    Proposed Sec. 116.20 describes the calculation of the benefit to 
cost ratio and its application.
    Section 116.25 describes the issuance of the Order to Alter and is 
essentially unchanged from current Sec. 116.25.
    Section 116.30 would provide for the submission and approval of 
plans and specifications for a bridge alteration.
    Section 116.35 would describe the format of the apportionment of 
costs for bridges eligible for alteration under the Truman-Hobbs Act.
    Section 116.40 would provide for the submission of bids, the 
approval of the award of contract, the approval of the apportionment of 
cost, the guaranty of cost and allowance for partial payments.
    Section 116.45 provides for appeals in the event that the 
complainant or the bridge owner is not satisfied with any decision made 
during the process. Additionally, the Truman-Hobbs Act provides for 
judicial review of the apportionment of costs.

Regulatory Assessment

    This proposal is not a significant regulatory action and has not 
been reviewed by the Office of Management and Budget under Executive 
Order 12866 and is not significant under the ``Department of 
Transportation Regulatory Policies and Procedures'' (44 FR 11040, 
February 26, 1979). The Coast Guard expects the economic impact of this 
proposal to be so minimal that a full Regulatory Assessment is 
unnecessary. This proposal merely updates regulations describing 
administrative procedures for implementing provisions governing 
alteration of obstructive bridges. There will be no direct cost to the 
general public.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the 
Coast Guard must consider whether this proposal, if adopted, will have 
a significant economic impact on a substantial number of small 
entities. ``Small entities'' include independently owned and operated 
small businesses that are not dominant in their field and that 
otherwise qualify as ``small business concerns'' under section 3 of the 
Small Business Act (15 U.S.C. 632).
    This proposal is intended to clarify regulations describing 
existing procedures used by the U.S. Coast Guard to implement statutory 
provisions governing alteration of obstructive bridges. The procedures 
described in this proposal are not new. This proposal describes some 
procedures in use, but not currently set forth in the Code of Federal 
Regulations. It also deletes some outdated provisions in the CFR. 
Therefore, this proposal is largely editorial in nature and imposes no 
special expense on small businesses. Because it expects the economic 
impact of this proposal to be minimal, the Coast Guard certifies under 
5 U.S.C. 605(b) that this proposal, if adopted, will not have a 
significant economic impact on a substantial number of small entities.

Collection of Information

    Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the 
Office of Management and Budget (OMB) reviews each proposed rule that 
contains a collection of information requirement, to determine whether 
the practical value of the information is worth the burden imposed by 
its collection. Collection of information requirements include 
reporting, record keeping, notification, and other similar 
requirements.
    This proposed rule contains collection of information requirements 
in Sec. 116.35. The following particulars apply:
    DOT No: 2115.
    OMB Control No: 2115-AE15.
    Administration: U.S. Coast Guard.
    Title: Alteration of Obstructive Bridges.
    Need for Information: The information being collected will be used 
in executing an action required by law.
    Proposed use for information: To provide for apportionment of costs 
to be paid by the bridge owner and to be paid by the Federal government 
for alteration of a bridge that unreasonably restricts navigation.
    Frequency of Response: Once per action.
    Burden Estimate: The estimated time needed to respond to the 
collection is 40 hours to research and reproduce files and to prepare 
correspondence.
    Respondents: Less than 10, in any year, of the possible 1600 
drawbridge owners.
    Form(s): None.
    Average Burden Hours Per Respondent: 40.
    The Coast Guard has submitted the requirements to OMB for review 
under section 305(h) of the Paperwork Reduction Act. Persons submitting 
comments on the requirements should submit their comments both to OMB 
and to the Coast Guard where indicated under ADDRESSES.

Federalism

    The Coast Guard has analyzed this proposal under the principles and 
criteria contained in Executive Order 12612 and has determined that 
this proposal does not have sufficient federalism implications to 
warrant the preparation of a Federalism Assessment. Administering the 
alteration of bridges found to be unreasonably obstructive to free 
navigation of the navigable waters of the United States has been 
committed to the Coast Guard by statute and therefore this proposal, if 
adopted, is expected to preempt state action on similar matters.

Environment

    The Coast Guard considered the environmental impact of this 
proposal and concluded that under section 2.B.2.g. of Commandant 
Instruction M16475.1B, this proposal is categorically excluded from 
further environmental documentation because it is a Bridge 
Administration Program action involving the promulgation of procedures, 
processes, and guidance for alteration of bridges. A Categorical 
Exclusion Determination is available in the docket for inspection or 
copying where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 116

    Bridges.

    For the reasons set out in the preamble, the Coast Guard proposes 
to amend 33 CFR part 116 as follows:
    1. Part 116 is revised to read as follows:

PART 116--ALTERATION OF OBSTRUCTIVE BRIDGES

Sec.
116.01  Purpose.
116.05  Complaints of unreasonably obstructive bridges.
116.10  Preliminary review.
116.15  Public hearings.
116.20  Benefit-to-cost ratio for Truman-Hobbs Act projects.
116.25  Order to Alter.
116.30  Plans and specifications.
116.35  Apportionment of costs under the Truman-Hobbs Act.
116.40  Submission of bids, approval of award, guaranty of cost, and 
partial payments for bridges eligible to be altered under the 
Truman-Hobbs Act.
116.45  Appeals.

    Authority: 5 U.S.C. 552, 33 U.S.C. 521, 49 CFR 1.46(c).


Sec. 116.01  Purpose.

    This part outlines the general procedures by which a bridge may be 
determined to be an unreasonable obstruction to navigation and an order 
to alter issued. This part contains regulations to implement three 
statutes which pertain to obstructive bridges: Section 18 of the Rivers 
and Harbors Appropriation Act of 1899, 33 U.S.C. 502., section 4 of the 
Bridge Act of 1906, 33 U.S.C. 494, and the Truman-Hobbs Act of 1940, as 
amended, 33 U.S.C. 511-524. Only a railroad bridge, a combination 
highway/railroad bridge, or a publicly-owned highway bridge may be 
eligible for alteration under the Truman-Hobbs Act.

    Note: In addition to the regulations contained in this subpart, 
guidance can be found in chapter 6 of COMDTINST M16590.5 (series), 
entitled, ``Bridge Administration Manual.'' This manual may be 
reviewed at Coast Guard Headquarters or any district office.


Sec. 116.05  Complaints of unreasonably obstructive bridges.

    Any person, company, or other entity may submit a complaint that a 
bridge unreasonably obstructs navigation to the commander of the Coast 
Guard district in which the bridge is located. The complaint should be 
in writing and include specific details to support the allegation.


Sec. 116.10  Preliminary review.

    (a) The commander of the Coast Guard district in which the bridge 
is located may review the district files and records of accidents as 
well as details of any complaint submitted to the Coast Guard, to 
determine if a bridge appears to be an unreasonable obstruction to the 
navigation of a waterway of the United States and to determine if 
further investigation is necessary. The District Commander may conduct 
a preliminary investigation.
    (b) If the District Commander conducts a preliminary investigation, 
the District Commander will notify the complainant of the results of 
the investigation. The notification will include sufficient information 
so that the basis for the decision is apparent, and, inform the 
complainant of the appeal process.
    (c) The District Commander also will determine, (if the preliminary 
review indicates alteration may be required), if the bridge in question 
is eligible for consideration under the Truman-Hobbs Act.
    (d) Preliminary determinations by the District Commander under this 
section may be appealed as described in Sec. 116.45.


Sec. 116.15  Public hearings.

    Before issuing an Order to Alter, a public hearing will be held by 
the District Commander of the district in which the bridge is located, 
at a location close to the bridge in question. At the hearing, the 
owners and controllers of the bridge, the complainant(s), and other 
interested parties will be given reasonable opportunity to offer 
evidence and be heard, orally or in writing, on the extent of any 
alteration necessary.


Sec. 116.20  Benefit-to-cost ratio for Truman-Hobbs Act projects.

    (a) Computation of the benefit-to-cost ratio for the proposed 
alteration project must be calculated by dividing the annualized 
navigation benefit of the bridge alteration by the annualized 
government share of the cost of the bridge alteration. Benefits data 
should be collected over a statistically valid time period.
    (b) In order for a bridge to be considered an unreasonable 
obstruction to navigation under the Truman-Hobbs Act and to qualify for 
alteration under the provisions of that Act, the benefits to 
navigation, expressed in dollars, must be greater than or equal to the 
government share of the cost of altering the bridge (the ratio must be 
at least 1:1). If so, then the bridge is declared unreasonably 
obstructive to navigation and an Order to Alter will be issued under 
the Truman-Hobbs Act.


Sec. 116.25  Order to Alter.

    (a) The District Commander will review the complaint and all 
gathered facts, including those from a hearing or from an investigation 
report, and make a preliminary recommendation whether a bridge should 
be declared an unreasonable obstruction to navigation and that an Order 
to Alter should be issued.
    (b) The Commandant will make a final determination, and issue an 
Order to Alter if the bridge is an unreasonable obstruction to 
navigation. The order may be accompanied by a Letter of Special 
Conditions, setting forth safeguards to protect the environment or 
otherwise providing for other special conditions or needs relevant to 
the alteration project.
    (1) An Order to Alter for a bridge that is not eligible for Truman-
Hobbs funding, will specify the changes that are required to be made 
and will prescribe a reasonable time in which to accomplish them.
    (2) If a bridge is eligible to be altered under the Truman-Hobbs 
Act, the Order to Alter also will specify the navigational clearances 
to be accomplished.
    (c) The order will be served promptly on the bridge owner. A copy 
of the order as served, together with a statement on the order executed 
by the person serving the order, showing on whom, when, and where the 
service was made, must be returned to the Commandant. Alternatively, 
service may be made by certified mail, return receipt requested (signed 
by the addressee), postage prepaid, in place of personal service.
    (d) Failure to comply with any order issued under the provisions of 
this part will subject the owner or controller of the bridge to the 
penalties prescribed in 33 U.S.C. 495, 502, or 519, as appropriate, and 
as otherwise provided by law.


Sec. 116.30  Plans and specifications.

    (a) The bridge owner must submit plans and specifications to 
provide for alteration of the bridge in accordance with the Order to 
Alter to the Commandant (G-NBR). The plans and specifications, at a 
minimum, must provide for the clearances identified in the Order to 
Alter, and also may include any additional alteration of the bridge 
that the owner considers desirable to meet the requirements of railroad 
or highway traffic.
    (b) Commandant (G-NBR) will approve or reject the plans and 
specifications in whole or in part, and may require the submission of 
new or additional plans and specifications.
    (c) When Commandant (G-NBR) has approved the plans and 
specifications, they are final and binding upon all parties, unless 
changes are approved later.


Sec. 116.35  Apportionment of cost under the Truman-Hobbs Act.

    (a) The bridge owner must bear such part of the cost attributable 
to the direct and special benefits which will accrue to the bridge 
owner as a result of the alteration, including expected savings in 
repair and maintenance, expected increased carrying capacity, costs 
attributable to the requirements of highway and railroad traffic, and 
actual capital costs of the used service life. The United States will 
bear the balance of the costs, including that part attributable to the 
necessities of navigation.
    (b) ``Direct and special benefits'' ordinarily will include items 
desired by the owner but which have no counterpart in the old bridge or 
are of higher quality than similar items in the old bridge such as 
improved signal and fender systems, pro rata share of dismantling 
costs, and improvements included, but not required, in the interests of 
navigation.
    (c) The statements of the proportionate shares of cost will include 
or be accompanied by a breakdown of the statements of total cost and 
proportionate shares, including sufficient details of the features of 
construction to show how the apportionment was determined and to permit 
adequate review and auditing of the statements.
    (d) The Commandant may require an equitable contribution from any 
interested person, firm, association, corporation, municipality, 
county, or State desiring alteration or relocation. This requirement 
may be made for other reasons, in addition to the bridge being an 
unreasonable obstruction to navigation, as a condition or precedent to 
the making of an order to alter.
    (e) Proportionate shares of cost to be borne by the United States 
and the bridge owner are developed in substantially the following form:


Total cost of project...................................   $____________
Less salvage............................................   $____________
Less contribution by third party........................   $____________
Cost of Alteration to be Apportioned....................   $____________
Share to be borne by the bridge owner:                                  
Direct and Special Benefits:                                            
  a. Removing old bridge................................   $____________
  b. Fixed charges......................................   $____________
  c. Betterments........................................   $____________
Expected savings in repair or maintenance costs:                        
  a. Repair.............................................   $____________
  b. Maintenance........................................   $____________
Costs attributable to requirements of railroad and/or                   
 highway traffic........................................   $____________
Expenditure for increased carrying capacity.............   $____________
Expired service life of old bridge......................   $____________
    Subtotal............................................   $____________
Share to be borne by the bridge owner...................   $____________
Contingencies...........................................   $____________
  Total.................................................   $____________
Share to be borne by the United States..................   $____________
  Contingencies.........................................   $____________
  Total government costs................................   $____________
                                                                        

Sec. 116.40  Submission of bids, approval of award, guaranty of cost, 
and partial payments for bridges eligible to be altered under the 
Truman-Hobbs Act.

    (a) Bids obtained by the bridge owner must be submitted to 
Commandant for approval.
    (b) Having provided the bridge owner with opportunity to be heard 
during the development of the Apportionment of Costs, an Order of 
Apportionment of Costs is issued by the Commandant.
    (c) After the bridge owner submits the guaranty of costs required 
by 33 U.S.C. 515, the Commandant authorizes the owner to award the 
contract.
    (d) Partial payments of the government's costs are authorized as 
the work progresses to the extent that funds have been appropriated.


Sec. 116.45  Appeals

    (a) If a complainant disagrees with a recommendation regarding 
obstruction or eligibility made by a District Commander, or Commandant 
(G-NBR), the complainant may appeal to the Chief, Office of Navigation 
Safety and Waterway Services.
    (b) The appeal must be submitted in writing to Chief, Office of 
Navigation Safety and Waterway Services, U.S. Coast Guard, 2100 Second 
Street SW., Washington, DC 20593-0001, within 30 days after the 
District Commander's or Commandant (G-NBF) decision. The Chief, Office 
of Navigation Safety and Waterway Services, will make a decision on the 
appeal within 60 days after receipt of the appeal. The decision of this 
appeal shall constitute final agency action.
    (c) Any order of apportionment made or issued under section 6 of 
the Truman-Hobbs Act, 33 U.S.C. 516, may be reviewed by the Court of 
Appeals for any judicial circuit in which the bridge in question is 
wholly or partly located, if a petition for review is filed within 90 
days after the date of issuance of the order. The review is described 
in section 10 of the Truman-Hobbs Act, 33 U.S.C. 520. The review 
proceedings do not operate as a stay of any order issued under Truman-
Hobbs, other than an order of apportionment, nor relieve any bridge 
owner of any liability or penalty under other provisions of that act.

    Dated: March 15, 1994.
R.C. Houle,
Acting Chief, Office of Navigation Safety and Waterway Services.
[FR Doc. 94-6511 Filed 3-21-94; 8:45 am]
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