Alteration of Obstructive Bridges; Proposed Rule DEPARTMENT OF TRANSPORTATION

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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