[Federal Register Volume 60, Number 82 (Friday, April 28, 1995)]
[Rules and Regulations]
[Pages 20900-20905]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10538]



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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 4 and 116

[CGD 91-063]
RIN 2115-AE15


Alteration of Obstructive Bridges

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard is amending the regulations which set out and 
describe the procedures for determining whether a bridge unreasonably 
obstructs the free navigation of navigable waters of the United States 
and, if it does, the procedures for ordering its alteration under the 
Truman-Hobbs Act, the Bridge Act of 1906, or the Rivers and Harbors 
Appropriation Act of 1899. The amendments clarify and provide 
additional details to the description of these procedures.

DATES: This rule becomes effective on May 30, 1995.

ADDRESSES: Documents referenced in this preamble are available for 
inspection and copying at the office of the Executive Secretary, Marine 
Safety Council, U.S. Coast Guard, 2100 Second Street SW., Washington, 
DC 20593-0001, Room 3406, between 8 a.m. and 3 p.m., Monday through 
Friday, except Federal holidays. The telephone number is (202) 267-1477 
for more information.

FOR FURTHER INFORMATION CONTACT: Mr. Larry Tyssens, Alterations, 
Drawbridges, and Systems Branch (G-NBR-1), at (202) 267-0376.

SUPPLEMENTARY INFORMATION:

Drafting Information

    The principal persons involved in drafting this document are Mr. 
Larry R. Tyssens, Project Manager, Office of Navigation Safety and 
Waterway Services, and LT Rachel Goldberg, Project Counsel, Office of 
the Chief Counsel.

Regulatory History

    On March 22, 1994, the Coast Guard published a Notice of Proposed 
Rulemaking (NPRM) entitled ``Alteration of Obstructive Bridges'' in the 
Federal Register (59 FR 13588). Opportunity for comment on the proposal 
was provided until May 23, 1994.

Discussion of Comments and Changes

    Four letters were received in response to the NPRM. Two of the 
comments were submitted by railroad trade associations, one by a 
private individual, and one comment was from the U.S. Department of 
Interior.
    The Department of Interior reminded the Coast Guard that in the 
process of ordering the alteration of unreasonably obstructive bridges, 
the Coast Guard must comply with the requirements of section 4(f) of 
the Department of Transportation Act and section 106 of the National 
Historic Preservation Act. Interior also commented that the Coast Guard 
should take into consideration the implementation of section 147 of the 
Federal Aid Highway Act of 1976 (Pub. L. 94-280). Section 4(f) of the 
Department of Transportation Act ensures that Department of 
Transportation agencies, including the Coast Guard, make a special 
effort to preserve the natural beauty of public lands and parks. The 
act includes a requirement for an agency determination that every 
project undertaken does not adversely impact these lands unless no 
feasible alternative exists and that any harm which may result is 
minimized. The Coast Guard has procedures to ensure compliance with 
this requirement. Internal Coast Guard instructions, found in Chapter 2 
of the Bridge Administration Manual (COMDTINST M16590.5A), detail the 
procedures to be followed by a District Commander to determine if a 
bridge alteration will result in any impact on 4(f) property and, if 
such impact is anticipated, procedures for evaluating the planned 
impact and consideration of alternatives.
    Section 106 of the National Historic Preservation Act (16 U.S.C. 
470) requires that Federal agencies identify and help preserve historic 
and cultural resources. To meet this requirement, internal Coast Guard 
instructions, also detailed in Chapter 2 of the Bridge Administration 
Manual, require a Coast Guard official to review the National Register 
of Historic Places to determine if any listed properties are within 
one-half mile of an alteration project. If there are any listed 
properties in the area, the Coast Guard must document any effects on 
such property and prepare an Environmental Impact Statement if one is 
warranted. In the development of any [[Page 20901]] bridge project, the 
Coast Guard also works closely with state and national agencies with 
expertise in historic resources. In addition, if an alteration project 
will affect Indian lands, the Coast Guard will invite the governing 
body of the Indian tribe to be a consulting party and to concur in any 
decision.
    In regard to Interior's suggestion as to the implementation of 
Section 147 of the Federal Aid Highway Act of 1976 (Pub. L. 94-280), 
the Coast Guard has a memorandum of understanding with the Federal 
Highway Administration (FHWA) concerning the preparation of 
environmental documents. Through this agreement, the Coast Guard and 
the FHWA have agreed that when a highway section requires an action by 
both FHWA and Coast Guard, the FHWA will normally serve as the lead 
agency for the preparation and processing of environmental documents.
    A comment was received from a publisher of marine education 
textbooks who objected to proposed Sec. 116.10 on the grounds that it 
is permissive in nature and fails to require the District Commander to 
review files, or to conduct an investigation relative to a formal 
complaint that a bridge unreasonably obstructs navigation. Coast Guard 
policy is to place requirements on its District Commanders in internal 
directives, such as Commandant Instructions and program manuals, and 
not in the Code of Federal Regulations. The procedures for the District 
Commander's Preliminary Review of a written complaint, including a 
mandatory requirement that a District Commander conduct a Preliminary 
Review any time a written complaint is received, are contained in 
Chapter 6 of the Bridge Administration Manual. Section 116.10 of the 
final rule now describes the procedures a District Commander will use 
to review any written complaint received about a bridge.
    Two comments were also received from railroad trade associations. 
One of the association's member railroads operates 75 percent of the 
line-haul mileage, employs 89 percent of the workers, accounts for 91 
percent of the freight revenue of all railroads in the United States, 
and operates almost all of the nation's inter-city passenger trains. 
The other is a national association of railroad professionals involved 
in the construction and maintenance of railroad bridges. Both of these 
comments objected to the omission in the proposed rule of language, 
found in the bridge statutes and the previous codification of part 116, 
that the Coast Guard consider the needs of rail and highway traffic, as 
well as the needs of navigation, in determining what alterations to a 
bridge must be undertaken by the bridge owner. The Coast Guard agrees 
with the comments. This language appears in the final rule in 
Sec. 116.01(e)(1).
    The comment from the trade association representing railroad 
professionals involved in the construction and maintenance of railroad 
bridges also expressed concern with the language of proposed 
Sec. 116.20(b). The association raised the issue of the railroad bridge 
owner's responsibility to totally fund alterations if the railroad 
bridge does not meet the benefit/cost ratio criteria used to determine 
eligibility for funding under the Truman-Hobbs Act. Using a benefit/
cost ratio to determine eligibility for Truman-Hobbs funding and as 
justification before Congress for this funding is not new. It is 
contained in the Bridge Administration Manual and is now being 
mentioned in 33 CFR 116.30 for purposes of clarification. Before a 
bridge alteration is ordered and funded under the Truman-Hobbs Act, a 
thorough study and analysis relevant to the unreasonableness of the 
bridge in question must be undertaken. The study must clearly 
demonstrate that the navigational benefits which would accrue as a 
result of the alteration would at least equal the cost of the 
alteration and, therefore, warrant such a public expenditure for an 
Order to Alter to be issued. If a bridge falling under the auspices of 
the Truman-Hobbs Act is statutorily declared to be an unreasonable 
obstruction to navigation, an Order to Alter will be issued whether the 
bridge meets the benefit/cost ratio criteria or not. The United States 
will pay a proportionate share of the cost of the alterations.
    The Coast Guard is also making a number of changes in wording to 
the final rule as a result of its internal review and input from the 
bridge program's field and Headquarters personnel in response to the 
NPRM. These changes are not substantive. They merely clarify, reword, 
and provide additional details of the Coast Guard's procedures and are 
discussed below.
    Section 116.01 has been expanded from the NPRM to provide an 
introduction and overview of the process the Coast Guard uses to 
determine whether a bridge is an unreasonable obstruction to navigation 
and, if it is, the process leading up to the issuance of an Order to 
Alter. The differences in the process between railroad or publicly 
owned highway bridges which are covered by the Truman-Hobbs Act (33 
U.S.C. 511 et. seq.), and all other bridges are highlighted. 
Additionally, the note referring the public to chapter 6 of the Bridge 
Administration Manual, COMDTINST M16590.5A, has been deleted.
    The contents of proposed Sec. 116.05 remains the same, but the 
section was reworded to make it clear that the Coast Guard only has 
authority to alter bridges over navigable waters of the United States.
    The subject matter discussed in proposed Sec. 116.10, Preliminary 
Review, has been separated into two separate sections in the final 
rule, Sec. 116.10 Preliminary Review, and Sec. 116.15 Preliminary 
Investigation. Section 116.10 of the final rule now discusses in 
greater detail the type of information used, and procedures followed, 
by a District Commander during the Preliminary Review stage. Section 
116.15 of the final rule now more clearly sets out the type of 
information which will be gathered by the District Commander during a 
Preliminary Investigation as well as the procedures used to decide 
whether the investigation goes forward.
    A new Sec. 116.20, Detailed Investigation, has been added to the 
final rule to explain this phase of a Coast Guard investigation 
conducted by a District Commander. This section sets out the type of 
information examined at the Detailed Investigation stage and procedures 
followed to determine if an Order to Alter should be issued. The 
section expands upon the more general guidance which was contained in 
paragraph (a) of proposed Sec. 116.25.
    Proposed Sec. 116.15, Public hearings, has been expanded to provide 
greater detail concerning the public hearing and appears in the final 
rule as Sec. 116.25. This section now clearly states that a public 
hearing takes place both as part of an internal Coast Guard 
investigation to determine if a bridge unreasonably obstructs 
navigation, and when there has been a Congressional determination that 
a bridge is unreasonably obstructive, to determine what alterations to 
the bridge are necessary.
    A new Sec. 116.30, Chief, Bridge Administration Division Review and 
Evaluation, has also been added to describe the information used by the 
Chief, Bridge Administration Division in making a final determination 
of whether a bridge unreasonably obstructs navigation and, if so (or in 
the case of a bridge declared unreasonably obstructive by Congress), 
what alterations will be required. Language from proposed Sec. 116.20, 
discussing the navigational benefit/cost ratio prepared by the Coast 
Guard, has been [[Page 20902]] incorporated into this section. This 
benefit/cost ratio is calculated to document the economic feasibility 
of an alteration under the Truman-Hobbs Act. The section also includes 
information about the ``60-Day Letter'' the Coast Guard issues to 
provide notice and opportunity for a bridge owner to request 
reevaluation, prior to the issuance of an Order to Alter, of the 
determination that a bridge is an unreasonable obstruction to 
navigation or of the required alterations to the bridge.
    The Order to Alter which was discussed in the NPRM in proposed 
Sec. 116.25 is discussed in the final rule in Sec. 116.35. As a result 
of this change, paragraphs (b) and (d) of proposed Sec. 116.25 are in 
Sec. 116.35 of the final rule. Paragraph (c) of proposed Sec. 116.25, 
which discussed service of the Order to Alter has been deleted as 
unnecessary. No special service procedures are needed. The requirements 
for an equitable contribution for alterations with non-navigational 
effects as a prerequisite to the issuance of an Order to Alter, which 
in the proposed rule was in the section concerning apportionment of 
costs, proposed Sec. 116.35, has been moved to paragraph (c) of 
Sec. 116.35 in the final rule as well.
    Minor editorial changes were made to proposed Sec. 116.30, Plans 
and specifications, which has been renumbered as Sec. 116.40 in the 
final rule; proposed Sec. 116.35, Apportionment of cost under the 
Truman-Hobbs Act, which has been renumbered as Sec. 116.50; and 
proposed 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, which has been renumbered as Sec. 116.45 in the 
final rule. These sections have been reworded and renumbered to clarify 
that the procedures in these sections only apply to bridges being 
altered under the Truman-Hobbs Act. The order of the sections 
describing the apportionment of costs and submission of bids, proposed 
Sec. 116.35 and Sec. 116.40, respectively, was changed to properly 
reflect the order of events during a bridge alteration project.
    Proposed Sec. 116.45, Appeals, now appears as Sec. 116.55 with the 
clarification that the decision to issue an Order to Alter can not be 
appealed through the administrative process. This clarification was 
made because issuing the Order constitutes final agency action.

Regulatory Evaluation

    This final rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866 and does not require an 
assessment of potential costs and benefits under section 6(a)(3) of 
that order. It has not been reviewed by the Office of Management and 
Budget under that order. It is not significantunder the ``Department of 
Transportation Regulatory Policies and Procedures'' (44 FR 11040; 
February 26, 1979). The Coast Guard expects the economic impact of this 
rulemaking to be so minimal that a full Regulatory Evaluation under 
paragraph 10(e) of the regulatory policies and procedures is 
unnecessary. This rulemaking is intended to revise the regulations 
which describe the administrative process used to declare and order the 
alteration of unreasonably obstructive bridges. There is no new expense 
to the general public. On average, the Coast Guard orders one bridge to 
be altered under the Truman-Hobbs Act a year, and orders one alteration 
of a bridge under the Bridge Act of 1906 every thirty years.

Small Entities

    This rulemaking is intended to clarify the circumstances under 
which a bridge may be declared unreasonably obstructive and the 
procedures taken to affect changes allowing the reasonably unimpeded 
passage of navigation. It imposes no special expense on small entities. 
Small entities may include (1) small businesses and not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields and (2) governmental jurisdictions with 
populations of less than 50,000. Therefore, because it expects the 
economic impact of this final rule to be minimal, the Coast Guard 
certifies under section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 601 et. seq.) that this will not have a significant economic 
impact on a substantial number of small entities. On average, the Coast 
Guard orders one bridge to be altered under the Truman-Hobbs Act a 
year, and orders one alteration of a bridge under the Bridge Act of 
1906 every thirty years.

Collection of Information

    This rule contains collection of information requirements. The 
Coast Guard has submitted the requirements to the Office of Management 
and Budget (OMB) for review under section 3504(h) of the Paperwork 
Reduction Act (44 U.S.C. 3501 et. seq.), and OMB approved them. The 
part number is part 116, and the corresponding OMB approval number is 
OMB Control Number 2115-0614.

Federalism

    The Coast Guard has analyzed this final rule under the principles 
and criteria contained in Executive Order 12612 and has determined that 
this rulemaking does not have sufficient federalism implications to 
warrant the preparation of a Federalism Assessment.

Environment

    The Coast Guard considered the environmental impact of this 
rulemaking and concluded that under section 2.B.2. of Commandant 
Instruction M16475.1B (as revised by 59 FR 38654, July 29, 1994), this 
final rule is categorically excluded from further environmental 
documentation because it is a Bridge Administration Program action 
involving the promulgation of procedures, process, and guidance for 
alteration of unreasonably obstructive bridges. A Categorical Exclusion 
Determination is available in the docket for inspection or copying 
where indicated under ADDRESSES.

List of Subjects

33 CFR Part 4

    Coast Guard, Reporting requirements.

33 CFR Part 116

    Bridges, Coast Guard.

    For the reasons set out in the preamble, the Coast Guard is 
amending parts 4 and 116 of Title 33, Code of Federal Regulations, as 
follows:

PART 4--[AMENDED]

    1. The authority citation for part 4 continues to read as follows:

    Authority: 44 U.S.C. 3507; 49 CFR 1.45(a).

    2. The table in Sec. 4.02 is amended by adding, in the appropriate 
columns, between the entries for ``Part 115'' and ``Part 125'', an 
entry for Part 116 to read as follows:


Sec. 4.02  Display.

------------------------------------------------------------------------
                                                             Current OMB
   33 CFR part or section where identified and described     control No.
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
Part 116...................................................    2115-0614
                                                                        
                  *        *        *        *        *                 
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    3. Part 116 is revised to read as follows:

PART 116--ALTERATION OF UNREASONABLY OBSTRUCTIVE BRIDGES

Sec.
116.01  General.
116.05  Complaints.
116.10  Preliminary review. [[Page 20903]] 
116.15  Preliminary investigation.
116.20  Detailed investigation.
116.25  Public hearings.
116.30  Chief, Bridge Administration Division review and evaluation.
116.35  Order to Alter.
116.40  Plans and specifications under the Truman-Hobbs Act.
116.45  Submission of bids, approval of award, guaranty of cost, and 
partial payments for bridges eligible for funding under the Truman-
Hobbs Act.
116.50  Apportionment of costs under the Truman-Hobbs Act.
116.55  Appeals.

    Authority: 33 U.S.C. 401, 521; 49 U.S.C. 1655(g); 49 CFR 1.4, 
1.46(c).


Sec. 116.01  General.

    (a) All bridges are obstructions to navigation and are tolerated 
only as long as they serve the needs of land transportation while 
allowing for the reasonable needs of navigation.
    (b) This part describes the general procedures by which the U.S. 
Coast Guard determines a bridge to be an unreasonable obstruction to 
navigation and issues an Order to Alter under the authority of the 
following statutes, as appropriate: Section 18 of the Rivers and 
Harbors Appropriations Act of 1899, 33 U.S.C. 502; Section 4 of the 
Bridge Act of 1906, 33 U.S.C. 494; or the Truman-Hobbs Act of 1940, as 
amended, 33 U.S.C. 511-524.
    (c) A bridge constructed across a navigable water of the United 
States shall not unreasonably obstruct the free navigation of the water 
over which it was constructed, either due to insufficient height or 
width of the navigation span, or because of difficulty in passing 
through the draw opening. If any bridge unreasonably obstructs 
navigation, the Commandant, U.S. Coast Guard, will order the alteration 
of that bridge. Alterations may include structural changes, 
replacement, or removal of the bridge.
    (d) Whenever the Coast Guard has good reason to believe that a 
bridge across any of the navigable waters of the United States is an 
unreasonable obstruction to navigation, the Coast Guard will give 
notice to the owner of the bridge and other interested parties, and 
hold a public hearing at which the interested parties will have a full 
opportunity to be heard and to offer evidence on the question of 
whether alterations to the bridge are necessary and, if so, the extent 
of alterations needed.
    (e) If the Coast Guard determines that alterations to a bridge are 
necessary, the Commandant, U.S. Coast Guard, will issue to the bridge 
owner an Order to Alter containing details of the alterations necessary 
to render navigation through or under the bridge reasonably free, easy, 
and unobstructed.
    (1) In the case of a railroad or publicly owned highway bridge, an 
Order to Alter is issued to the bridge owner under the provisions of 
the Truman-Hobbs Act (33 U.S.C. 511 et seq.). In ordering these 
alterations, the Coast Guard will give due regard to the necessities of 
free and unobstructed navigation and of rail and highway traffic. For 
alterations to bridges governed by the Truman-Hobbs Act, the Coast 
Guard must approve general plans, specifications, and contracts for the 
alteration project, as well as approving the apportionment of the total 
cost of the alterations between the United States and the bridge owner.
    (2) For all other bridges, the Order to Alter will contain the 
required alterations for the bridge and will prescribe a reasonable 
time in which to accomplish the required alterations. The bridge owner 
is responsible for the entire cost of the required alterations.


Sec. 116.05  Complaints.

    Any person, company, or other entity may submit to the District 
Commander of the Coast Guard district in which a bridge over a 
navigable water of the United States is located, a complaint that a 
bridge unreasonably obstructs navigation. The complaint must be in 
writing and include specific details to support the allegation.


Sec. 116.10  Preliminary review.

    (a) Upon receipt of a written complaint, the District Commander 
will review the complaint to determine if, in the District Commander's 
opinion, the complaint is justified and whether a Preliminary 
Investigation is warranted.
    (1) The District Commander's opinion as to whether or not the 
complaint warrants a Preliminary Investigation will be formed through 
informal discussions with the complainant, users of the affected 
waterway, the owner of the bridge, and other interested parties.
    (2) In forming an opinion, the District Commander may also review 
the district files, records of accidents, and details of any additional 
written complaints associated with the bridge in question.
    (b) In the absence of any written complaint, the District Commander 
may decide, based on a bridge's accident history or other criteria, to 
conduct a Preliminary Investigation.
    (c) The District Commander will inform the complainant and the 
Chief, Bridge Administration Division of the determination of any 
Preliminary Review. If the District Commander decides that the bridge 
in question is not an unreasonable obstruction to navigation, the 
complainant will be provided with a brief summary of the information on 
which the District Commander based the decision and will be informed of 
the appeal process described in Sec. 116.55. There will be no further 
investigation, unless additional information warrants a continuance or 
reopening of the case.


Sec. 116.15  Preliminary investigation.

    (a) During the Preliminary Investigation, the District Commander 
will prepare a written report containing all pertinent information and 
submit the report, together with a recommendation for or against the 
necessity of a Detailed Investigation, to the Chief, Bridge 
Administration Division.
    (b) The Preliminary Investigation Report will include a description 
of the nature and extent of the obstruction, the alterations to the 
bridge believed necessary to meet the reasonable needs of existing and 
future navigation, the type and volume of waterway traffic, and a 
calculation of the benefits to navigation which would result from the 
proposed bridge alterations.
    (c) The Chief, Bridge Administration Division will review the 
Preliminary Investigation Report and make a Preliminary Decision 
whether or not to undertake a Detailed Investigation and a Public 
Hearing.
    (d) If after reviewing the Preliminary Investigation Report, the 
Chief, Bridge Administration Division decides that further 
investigation is not warranted, the complainant will be notified of the 
decision. This notification will include a brief summary of information 
on which the decision was based and details of the appeal process 
described in Sec. 116.55.


Sec. 116.20  Detailed investigation.

    (a) When the Chief, Bridge Administration Division determines that 
a Detailed Investigation should be conducted, the District Commander 
will initiate an investigation that addresses all of the pertinent data 
regarding the bridge, including information obtained at a public 
hearing held under Sec. 116.25. As part of the investigation, the 
District Commander will develop a comprehensive report, termed the 
``Detailed Investigation Report'', which will discuss: the obstructive 
character of the bridge in question; the impact of that bridge upon 
navigation; navigational benefits derived; whether an alteration is 
needed to meet the needs of navigation; and, if alteration is 
recommended, what type.
    (b) The District Commander will forward the completed Detailed 
Investigation Report to the Chief, Bridge [[Page 20904]] Administration 
Division for review together with a recommendation of whether the 
bridge should be declared an unreasonable obstruction to navigation 
and, if so, whether an Order to Alter should be issued.


Sec. 116.25  Public hearings.

    (a) Any time the Chief, Bridge Administration Division determines 
that a Detailed Investigation is warranted, or when Congress declares a 
bridge unreasonably obstructive, the District Commander will hold a 
public hearing near the location of the bridge to provide the bridge 
owner, waterway users, and other interested parties the opportunity to 
offer evidence and be heard, orally or in writing, as to whether any 
alterations are necessary to provide reasonably free, safe, and 
unobstructed passage for waterborne traffic. The District Commander 
will issue a public notice announcing the public hearing stating the 
time, date, and place of the hearing.
    (b) When a bridge is statutorily determined to be an unreasonable 
obstruction, the scope of the hearing will be to determine what 
navigation clearances are needed.
    (c) In all other cases, the scope of the hearing will be to address 
issues bearing on the question of whether the bridge is an unreasonable 
obstruction to navigation and, if so, what alterations are needed.
    (d) The hearing will be recorded. Copies of the public hearing 
transcript will be available for purchase from the recording service.


Sec. 116.30  Chief, Bridge Administration Division Review and 
Evaluation.

    (a) Upon receiving a Detailed Investigation Report from a District 
Commander, the Chief, Bridge Administration Division will review all 
the information and make a final determination of whether or not the 
bridge is an unreasonable obstruction to navigation and, if so, whether 
to issue an Order to Alter. This determination will be accompanied by a 
supporting written Decision Analysis which will include a Benefit/Cost 
Analysis, including calculation of a Benefit/Cost Ratio.
    (b) The Benefit/Cost ratio is calculated by dividing the annualized 
navigation benefit of the proposed bridge alteration by the annualized 
government share of the cost of the alteration.
    (c) Except for a bridge which is statutorily determined to be an 
unreasonable obstruction, an Order to Alter will not be issued under 
the Truman-Hobbs Act unless the ratio is at least 1:1.
    (d) If a bridge is statutorily determined to unreasonably obstruct 
navigation, the Chief, Bridge Administration Division will prepare a 
Decision Analysis to document and provide details of the required 
vertical and horizontal clearances and the reasons alterations are 
necessary.
    (e) If the Chief, Bridge Administration Division decides to 
recommend that the Commandant issue an Order to Alter, or a bridge is 
statutorily determined to unreasonably obstruct navigation, the Chief, 
Bridge Administration Division will issue a letter to the bridge owner 
(``The 60-Day Letter'') at least 60 days before the Commandant issues 
an Order to Alter. This letter will contain the reasons an alteration 
is necessary, the proposed alteration, and, in the case of a Truman-
Hobbs bridge, an estimate of the total project cost and the bridge 
owner's share.
    (f) If the bridge owner does not agree with the terms proposed in 
the 60-Day Letter, the owner may request a reevaluation of the terms. 
The request for a reevaluation must be in writing, and identify the 
terms for which reevaluation is requested. The request may provide 
additional information not previously presented.
    (g) Upon receipt of the bridge owner's response, the Chief, Bridge 
Administration Division will reevaluate the situation based on the 
additional information submitted by the bridge owner. If after the 
Chief, Bridge Administration Division reviews the determination, there 
is no change, the Commandant may issue an Order to Alter as set out in 
Sec. 116.35. The Chief, Bridge Administration Division's determination 
based on the reevaluation will constitute final agency action.


Sec. 116.35  Order to Alter.

    (a) If the bridge owner agrees with the contents of the 60-Day 
Letter, if no reply is received by 60 days after the issuance of the 
letter, or if after reevaluation a bridge is determined to be an 
unreasonable obstruction to navigation, the Commandant will issue an 
Order to Alter.
    (1) If a bridge is eligible for funding under the Truman-Hobbs Act, 
the Order to Alter will specify the navigational clearances to be 
accomplished in order to meet the reasonable needs of navigation.
    (2) An Order to Alter for a bridge that is not eligible for Truman-
Hobbs funding will specify the navigational clearances that are 
required to meet the reasonable needs of navigation and will prescribe 
a reasonable time in which to accomplish them.
    (b) If appropriate, the Order to Alter will be accompanied by a 
letter of special conditions setting forth safeguards needed to protect 
the environment or to provide for any special needs of navigation.
    (c) If a proposed alteration to a bridge has desirable, non-
navigational benefits, the Chief, Bridge Administration Division may 
require an equitable contribution from any interested person, firm, 
association, corporation, municipality, county, or state benefiting 
from the alteration as a prerequisite to the making of an Order to 
Alter for that alteration.
    (d) Failure to comply with any Order to Alter 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, 519, or any 
other applicable provision.


Sec. 116.40  Plans and specifications under the Truman-Hobbs Act.

    (a) After an Order to Alter has been issued to a bridge owner under 
the Truman-Hobbs Act, the Chief, Bridge Administration Division will 
issue a letter to the bridge owner outlining the owner's 
responsibilities to submit plans and specifications to the Chief, 
Bridge Administration Division for the alteration of the bridge. The 
plans and specifications, at a minimum, must provide for the clearances 
identified in the Order to Alter. The plans and specifications may also 
include any other additional alteration to the bridge that the owner 
considers desirable to meet the requirements of railroad or highway 
traffic. During the alteration process, balanced consideration shall be 
given to the needs of rail, highway, and marine traffic.
    (b) The Chief, Bridge Administration Division will approve or 
reject the plans and specifications submitted by the bridge owner, in 
whole or in part, and may require the submission of new or additional 
plans and specifications.
    (c) When Chief, Bridge Administration Division has approved the 
submitted plans and specifications, they are final and binding upon all 
parties, unless later changes are approved by the Chief, Bridge 
Administration Division. Any changes to the approved plans will be 
coordinated with the District Commander.


Sec. 116.45  Submission of bids, approval of award, guaranty of cost, 
and partial payments for bridges eligible for funding under the Truman-
Hobbs Act.

    (a) Once the plans and specifications for a bridge eligible for 
funding under the Truman-Hobbs Act have been [[Page 20905]] approved, 
the bridge owner must take bids for the alteration of the bridge 
consistent with the approved plans and specifications. Those bids must 
then be submitted to the Chief, Bridge Administration Division for 
approval.
    (b) After the bridge owner submits the guaranty of cost required by 
33 U.S.C. 515, the Chief, Bridge Administration Division authorizes the 
owner to award the contract.
    (c) Partial payments of the government's costs are authorized as 
the work progresses to the extent that funds have been appropriated.


Sec. 116.50  Apportionment of costs under the Truman-Hobbs Act.

    (a) In determining the apportionment of costs, 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 
alteration to the bridge, including expected savings in repairs 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 or are of higher 
quality than similar items in the bridge prior to alteration. Examples 
include improved signal and fender systems, pro rata share of 
dismantling costs, and improvements included, but not required, in the 
interests of navigation.
    (c) During the development of the Apportionment of Costs, the 
bridge owner will be provided with an opportunity to be heard. 
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 ________ $________

    (d) The Order of Apportionment of Costs will include the guaranty 
of costs.


Sec. 116.55  Appeals.

    (a) Except for the decision to issue an Order to Alter, if a 
complainant disagrees with a recommendation regarding obstruction or 
eligibility made by a District Commander, or the Chief, Bridge 
Administration Division, the complainant may appeal that decision to 
the Chief, Office of Navigation Safety and Waterway Services.
    (b) The appeal must be submitted in writing to the Chief, Office of 
Navigation Safety and Waterway Services, U.S. Coast Guard, 2100 Second 
Street SW., Washington, DC 20593-0001, within 60 days after the 
District Commander's or the Chief's, Bridge Administration Division 
decision. The Chief, Office of Navigation Safety and Waterway Services 
will make a decision on the appeal within 90 days after receipt of the 
appeal. The Chief's, Office of Navigation Safety and Waterway Services 
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 the 
Truman-Hobbs Act, other than an order of apportionment, nor relieve any 
bridge owner of any liability or penalty under other provisions of that 
act.

    Dated: April 20, 1995.
R.C. Houle,
Acting Chief, Office of Navigation Safety and Waterway Services.
[FR Doc. 95-10538 Filed 4-27-95; 8:45 am]
BILLING CODE 4910-14-P