20900 Federal Register / Vol. 60, No. 82 / Friday, April 28, 1995 / Rules and Regulations

(2) Payment for internal revenue

stamps. The director may accept checks,

drafts, and money orders described in

paragraph (a)(1) of this section in

payment for internal revenue stamps.

However, the director may refuse to

accept any personal check whenever he

or she has good reason to believe that

such check will not be honored upon

presentment.

(b) Checks or money orders not paid—

(1) Ultimate liability. The person who

tenders any check (whether certified or

uncertified, cashier’s, treasurer’s, or

other form of check or draft) or money

order in payment for taxes or stamps is

not released from his or her liability

until the check, draft, or money order is

paid; and, if the check, draft, or money

order is not duly paid, the person shall

also be liable for all legal penalties and

additions, to the same extent as if such

check, draft, or money order had not

been tendered.

(2) Liability of financial institutions

and others. If any certified, treasurer’s,

or cashier’s check, or other guaranteed

draft, or money order, is not duly paid,

the United States shall have a lien for

the amount of such check or draft upon

all assets of the financial institution on

which drawn, or for the amount of such

money order upon the assets of the

issuer thereof. The unpaid amount shall

be paid out of such assets in preference

to any other claims against such

financial institution or issuer except the

necessary costs and expenses of

administration and the reimbursement

of the United States for the amount

expended in the redemption of the

circulating notes of such financial

institution. In addition, the Government

has the right to exact payment from the

person required to make the payment.

* * * * *

(d) Financial institution. For purposes

of section 6311 and this section,

financial institution includes but is not

limited to—

(1) A bank or trust company (as

defined in section 581);

(2) A domestic building and loan

association (as defined in section

7701(a)(19));

(3) A mutual savings bank (including

but not limited to a mutual savings bank

as defined in section 591(b));

(4) A credit union (including both

state and federal credit unions, and

including but not limited to a credit

union as defined in section 501(c)(14));

and

(5) A regulated investment company

(as defined in section 851(a)).

Margaret Milner Richardson,

Commissioner of Internal Revenue.

Approved: April 5, 1995.

Leslie Samuels,

Assistant Secretary of the Treasury.

[FR Doc. 95–10410 Filed 4–27–95; 8:45 am]

BILLING CODE 4830–01–U

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.

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 onehalf 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
Federal Register / Vol. 60, No. 82 / Friday, April 28, 1995 / Rules and Regulations 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 § 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 § 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

§ 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 § 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 § 116.10, Preliminary Review,

has been separated into two separate

sections in the final rule, § 116.10

Preliminary Review, and § 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 § 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 § 116.25.

Proposed § 116.15, Public hearings,

has been expanded to provide greater

detail concerning the public hearing and

appears in the final rule as § 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 § 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 § 116.20, discussing the

navigational benefit/cost ratio prepared

by the Coast Guard, has been
20902 Federal Register / Vol. 60, No. 82 / Friday, April 28, 1995 / Rules and Regulations

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

§ 116.25 is discussed in the final rule in

§ 116.35. As a result of this change,

paragraphs (b) and (d) of proposed

§ 116.25 are in § 116.35 of the final rule.

Paragraph (c) of proposed § 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

§ 116.35, has been moved to paragraph

(c) of § 116.35 in the final rule as well.

Minor editorial changes were made to

proposed § 116.30, Plans and

specifications, which has been

renumbered as § 116.40 in the final rule;

proposed § 116.35, Apportionment of

cost under the Truman-Hobbs Act,

which has been renumbered as § 116.50;

and proposed § 116.40, Submission of

bids, approval of award, guaranty of

cost, and partial payments for bridges

eligible to be altered under the TrumanHobbs Act, which has been renumbered

as § 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 § 116.35 and § 116.40,

respectively, was changed to properly

reflect the order of events during a

bridge alteration project.

Proposed § 116.45, Appeals, now

appears as § 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 TrumanHobbs 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 § 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:

§ 4.02 Display.

33 CFR part or section where

identified and described

Current

OMB control No.

* * * * *

Part 116 .................................... 2115–0614

* * * * *

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.
Federal Register / Vol. 60, No. 82 / Friday, April 28, 1995 / Rules and Regulations 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).

§ 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 TrumanHobbs 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.

§ 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.

§ 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 § 116.55. There will be no

further investigation, unless additional

information warrants a continuance or

reopening of the case.

§ 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 § 116.55.

§ 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 § 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
20904 Federal Register / Vol. 60, No. 82 / Friday, April 28, 1995 / Rules and Regulations

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.

§ 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.

§ 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 § 116.35. The Chief,

Bridge Administration Division’s

determination based on the reevaluation

will constitute final agency action.

§ 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.

§ 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.

§ 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
Federal Register / Vol. 60, No. 82 / Friday, April 28, 1995 / Rules and Regulations 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.

§ 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 llll $llll

Less salvage llll $llll

Less contribution by third party llll

$llll

Cost of alteration to be apportioned llll

$llll

Share to be borne by the bridge owner:

Direct and Special Benefits:

a. Removing old bridge llll $llll

b. Fixed charges llll $llll

c. Betterments llll $llll

Expected savings in repair or maintenance

costs:

a. Repair llll $llll

b. Maintenance llll $llll

Costs attributable to requirements of railroad

and/or highway traffic llll

$llll

Expenditure for increased carrying capacity

llll $llll

Expired service life of old bridge llll

$llll

Subtotal llll $llll

Share to be borne by the bridge owner

llll $llll

Contingencies llll $llll

Total llll $llll

Share to be borne by the United States

llll $llll

Contingencies llll $llll

Total llll $llll

(d) The Order of Apportionment of

Costs will include the guaranty of costs.

§ 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

33 CFR Part 165

[CGD01–95–014]

RIN 2115–AA97

Safety Zone: Parade of Ships, Fleet

Week ’95, Port of New York and New

Jersey

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

SUMMARY: The Coast Guard is

establishing a temporary safety zone on

May 24, 1995, for the Fleet Week ’95

Parade of Ships. A moving safety zone

is established 500 yards fore and aft,

and 200 yards on each side of the

designated column of vessels in this

parade as it transits from the Verrazano

Narrows Bridge to the George

Washington Bridge on the Hudson

River. As the vessels make their turns

and proceed southbound in the Hudson

River, the moving safety zone continues

to encompass all waters within a 200

yard radius of each vessel until safely

berthed.

EFFECTIVE DATE: This rule is effective

from 9:30 a.m. until 4 p.m. on

Wednesday, May 24, 1995, unless

extended or terminated sooner by the

Coast Guard Captain of the Port, New

York.

FOR FURTHER INFORMATION CONTACT:

Lieutenant (Junior Grade) K. Messenger,

Maritime Planning Staff Chief, Coast

Guard Group, New York, (212) 668–

7934.

SUPPLEMENTARY INFORMATION:

Drafting Information: The drafters of this

notice are LTJG K. Messenger, Project

Manager, Coast Guard Group New York and

LCDR J. Stieb, Project Attorney, First Coast

Guard District, Legal Office.

Regulatory History

On March 16, 1995, the Coast Guard

published a notice of proposed

rulemaking (NPRM) in the Federal

Register (60 FR 14246) concerning this

regulatory action. Interested persons

were requested to submit comments on

or before April 17, 1995. No comments

were received. A public hearing was not

requested and one was not held. The

proposed rule stated that the vessel

column would transit from the

Verrazano Narrows Bridge to the waters

west of the 79th Street Boat Basin,

Manhattan, New York. The Coast Guard

has since determined that this would

not be practical due to the assigned

mooring and anchoring locations of the

parade vessels. While the vessel column

will transit approximately 8,300 yards

north of the 79th Street Boat Basin, the

parameters of the moving safety zone