[Federal Register: January 17, 2007 (Volume 72, Number 10)]
[Proposed Rules]
[Page 1965-1975]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17ja07-19]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 262
[Docket No. FRA 2005-23774, Notice No. 1]
RIN 2130-AB74
Implementation of Program for Capital Grants for Rail Line
Relocation and Improvement Projects
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: Section 9002 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L.
109-59, August 10, 2005) amends chapter 201 of Title 49 of the United
States Code by adding section 20154. Section 20154 authorizes--but does
not appropriate--$350,000,000 per year for each of the fiscal years
(FY) 2006 through 2009 for the purpose of funding a grant program to
provide financial assistance for local rail line relocation and
improvement projects. Section 20154 directs the Secretary of
Transportation (Secretary) to issue regulations implementing this grant
program, and the Secretary has delegated this responsibility to FRA.
This NPRM proposes a regulation intended to carry out that statutory
mandate. As of the publication of this NPRM, Congress had not
appropriated any funding for the program for FY 2006 or FY 2007.
DATES: (1) Written Comments: Written comments must be received on or
before March 5, 2007. Comments received after that date will be
considered to the extent possible without incurring additional expense
or delay.
(2) Public Hearing: Requests for a public hearing must be in
writing and must be submitted to the Department of Transportation
Docket Management System at the address below on or before March 5,
2007. If a public hearing is requested and scheduled, FRA will announce
the date, location, and additional details concerning the hearing by
separate notice in the Federal Register.
ADDRESSES: You may submit comments identified by DOT DMS Docket Number
FRA 2005-23774 by any of the following methods:
Web site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
Fax: 1-202-493-2251.
Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-001.
Hand Delivery: Room PL-401 on the plaza level of the
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 am
and 5 pm, Monday through Friday, except Federal holidays.
Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting
comments.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all comments received will be posted without
change to http://dms.dot.gov, including any personal information
provided. Please see the Privacy Act heading in the SUPPLEMENTARY
INFORMATION section of this document for Privacy Act information
related to any submitted comments or materials.
Docket: For access to the docket to read background documents or
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC, between 9 am and 5 pm, Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT: John A. Winkle, Transportation
Industry Analyst, Office of Railroad Development, Federal Railroad
Administration, 1120 Vermont Avenue, NW., Mail Stop 13, Washington, DC
20590 (John.Winkle@fra.dot.gov or 202-493-6320); or Elizabeth A.
Sorrells, Attorney-Advisor, Office of Chief Counsel, Federal Railroad
Administration, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, DC
20590 (Betty.Sorrells@fra.dot.gov or 202-493-6057).
SUPPLEMENTARY INFORMATION:
I. Background
Much of the economic growth of the United States can be linked
directly to the expansion of rail service. As the nation moved
westward, railroads expanded to provide transportation services to
growing communities. No
[[Page 1966]]
event better illustrates this point than the ``golden spike''
ceremonies at Promontory Point, Utah in 1869 that ushered in
transcontinental rail service. Travel times between the Atlantic and
Pacific coasts were dramatically reduced opening numerous new markets
for both passenger and freight operations. Municipalities throughout
the country knew that their economic success rested on being served by
the railroad and many offered incentives to railroads for the chance to
be served. As a result, many communities' land use patterns are
developed around the railroad lines that became an economic artery as
important as ``Main Street.'' By 1916, rail expansion peaked as miles
of road owned \1\ reached 254,251.
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\1\ This measure is the aggregate length of roadway and excludes
yard tracks and sidings, and does not reflect the fact that a mile
of road may include two, three or more parallel tracks.
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Soon after the end of the Second World War, the railroads'
competitors--the auto, truck, air, pipeline and modern barge
industries--proved to be superior to the railroads in responding to
many of the growing demands for speed, convenience and service quality
that characterized the evolving economy of the 20th century. Mired in
stifling economic over-regulation, railroads were unable to respond
effectively to the competitive challenges facing them. These changes
had a dramatic effect on rail's market share. From nearly 80 percent of
the intercity freight market in the early 1920s, rail share fell to
less than 37 percent in 1975. The decline was even more dramatic with
regard to passenger service. The industry responded by cutting excess
capacity, often through bankruptcy. By 1975, miles of road owned had
fallen to 199,126, a 22 percent decline from 1916. The most current
data from 2004 shows a further decline to 140,806 road miles or 45
percent fewer miles than was available in 1916.
By the early years of the 21st century up to the present time,
however, the rail industry has made a significant turnaround. Beginning
with rate deregulation ushered in by the Staggers Act in 1980, and a
number of other favorable changes, railroads have introduced innovative
services and modern pricing practices, and, as a result, have become
profitable and have recaptured market share. Between 1985 and 2004,
revenue ton-miles \2\ nearly doubled from 876.9 billion to 1.7
trillion. Rail's market share of intercity revenue freight is
approaching 45 percent. This growth is being accommodated on a system
that shrunk in response to conditions noted above. The smaller physical
plant is handling greater and greater freight volumes.
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\2\ A ton of any commodity transported one-mile.
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The clearest evidence of more intense use of the industry's plant
is found in measuring ``traffic density.'' ``Traffic density'' is the
millions of revenue ton-miles per owned mile of road. In 1985, this
indicator stood at 6.02. By 2004, this figure had nearly tripled to
17.02 millions of revenue ton-miles per mile of road owned. This more
intense use of rail infrastructure is especially challenging in
communities that developed adjacent to or around rail lines, most built
over a century ago on alignments appropriate to the times.
As a result, in many places throughout the country, the rail
infrastructure that was once so critical to communities now presents
problems as well as benefits. For example, the tracks that run down the
middle of towns separate the communities on either side. Rail yards and
tracks occupy valuable real estate. Trains parked in sidings may
present attractive nuisances to children and vandals, and, in the case
of tank cars containing hazardous materials, may present serious
security or health risks. Grade crossings may present safety risks to
the cars and pedestrians that must cross the tracks. These same
crossings create inconveniences when long trains block crossings for
extended periods of time and sound horns as they operate through
crossings in neighborhoods. In some cases, trains operate over lines at
speeds that are suited for the type of track but often present safety
concerns to those in the surrounding community. In some cases, rail
lines have become so congested that communities experience what they
perceive as almost continuous train traffic. In short, rail lines,
which once brought economic prosperity and social cohesion, are now
sometimes viewed as factors that decline both.\3\
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\3\ In some locations, passenger trains, both intercity and
commuter, will continue to serve downtown locations. Passenger
trains generally operate less often than freight trains, are
shorter, and, therefore, do not create the extensive problems that
freight trains do.
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In an effort to satisfy all constituents, state and local
governments are looking for ways to eliminate the problems created by
the increased demand on the infrastructure while still maintaining the
benefits the railroad provides. Many times, the solution is merely to
relocate the track in question to an area that is better suited for it.
For example, a recently completed relocation project in Greenwood,
Mississippi eliminated twelve at-grade highway-rail crossings, which
greatly improved safety for motorists and eliminated blocked crossings.
With that success in mind, Mississippi is currently looking to relocate
two main lines that run through the heart of the Central Business
District in Tupelo. Combined, these two lines cross 26 highways in the
city, and all but one are at-grade crossings. One of the options the
State is considering is laterally relocating the lines outside of the
business district. FRA would like commenters to discuss other potential
projects that could benefit from the program implemented by this
regulation.
In some situations, vertical relocation may be the best solution.
For example, Nevada has undertaken the Reno Transportation Rail Access
Project (ReTRAC), the purpose of which is to ``sink'' 33 feet below the
ground in a trench the approximately 2.25 mile segment of main line
track that runs through Reno. Both the Union Pacific Railroad Company
(UP) and Amtrak operate over this line. The project will allow for the
closing of 11 grade crossings and will generally improve both highway
efficiency and safety as well as the safety and efficiency of the
trains that operate through Reno. Many of these relocation projects,
like the ReTRAC project, are expensive, and state and local governments
lack the resources to undertake them.\4\ When commenting on potential
projects, FRA requests that commenters discuss the estimated costs of
those projects.
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\4\ The ReTRAC project is expected to cost in excess of
$260,000,000.
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In addition to relocation projects, many communities are eager to
improve existing rail infrastructure in an effort to mitigate the
perceived negative effects of rail traffic on safety in general, motor
vehicle traffic flow, economic development, or the overall quality of
life of the community. For example, in an effort to improve train speed
and reduce the risk of derailments, rail lines that were built a
century ago with sharp curves can be straightened. In addition,
significant efficiencies can be gained and safety enhanced by, as
examples, extending passing tracks and yard lead tracks, and adding
track circuits and signal spacing changes.
II. SAFETEA-LU
On August 10, 2005, President George W. Bush signed SAFETEA-LU,
(Pub. L. 109-59) into law. Section 9002 of SAFETEA-LU amended chapter
201 of Title 49 of the United States Code by adding a new Sec. 20154,
which establishes the basic elements of a funding program for capital
grants for local rail line relocation and improvement projects.
[[Page 1967]]
Subsection (b) of the new Sec. 20154 mandates that the Secretary issue
``temporary regulations'' to implement the capital grants program and
then issue final regulations by October 1, 2006. This NPRM proposes a
regulation intended to carry out that statutory mandate.
In order to be eligible for a grant for an improvement construction
project, the project must mitigate the adverse effects of rail traffic
on safety, motor vehicle traffic flow, community quality of life,
including noise mitigation, or economic development, or involve a
lateral or vertical relocation of any portion of the rail line,
presumably to reduce the number of grade crossings and/or serve to
mitigate noise, visual issues, or other externality that negatively
impacts a community. A more detailed explanation of the rule text is
provided below in the Section-by-Section Analysis.
Congress authorized, but did not appropriate, $350 million per year
for each fiscal year 2006 through 2009. At least half of the funds
awarded under this program shall be provided as grant awards of not
more than $20 million each. A State or other eligible entity will be
required to pay at least 10 percent of the shared costs of the project,
whether in the form of a contribution of real property or tangible
personal property, contribution of employee services, or previous costs
spent on the project before the application was filed. The state or FRA
may also seek financial contributions from private entities benefiting
from the rail line relocation or improvement project.
In SAFETEA-LU, Congress directed FRA to issue ``temporary
regulations'' by April 1, 2006. Under the Administrative Procedure Act
and Executive Orders governing rulemaking, FRA could comply with
Congress's deadline only by issuing a direct final rule or an interim
final rule by April 1, 2006. However, the FRA cannot use either a
direct final rule or an interim final rule because the legal
requirements for using those instruments cannot be satisfied. The case
law is clear that a statutory deadline does not suffice to justify
dispensing with notice and comment prior to issuing a rule on grounds
that notice and comment are ``impracticable, unnecessary, or contrary
to the public interest'' under Section 553(b)(B) of the Administrative
Procedure Act. Because as of this date no funding has been appropriated
for the program and no projects can be funded at this time, FRA
believes the purposes of SAFETEA-LU can best be met by proceeding in
lieu of an interim final rule with an NPRM, which satisfies the
requirements of the Administrative Procedure Act and allows for greater
public participation in the rulemaking process.
III. Section-by-Section Analysis
SAFETEA-LU contains very specific language regarding implementation
of the rail line relocation and improvement program. In several
sections, the language in this proposed regulation is reprinted
directly from SAFETEA-LU. Given such an unambiguous statutory mandate,
FRA has made only a few additions in this proposed regulation to
include language that was not in the statute. For those sections, there
is a further discussion of FRA's intent and a request for comments.
This Section-by-Section Analysis does not discuss Congressional intent.
Section 262.1 Purpose
This section merely states that the purpose of this NPRM is to
carry out the Congressional mandate in Sec. 9002 of SAFETEA-LU by
promulgating regulations which implement the grant financial assistance
program for local rail relocation and improvement projects set forth in
new Sec. 20154 of Title 49 of the United States Code.
Section 262.3 Definitions
Act
When used in this Part, ``Act'' means SAFETEA-LU.
Administrator
This definition makes clear that when the term ``Administrator'' is
used in this Part, it refers to the Administrator of the Federal
Railroad Administration. It also provides that the Administrator may
delegate authority under this rule to other Federal Railroad
Administration officials.
Allowable costs
This definition makes clear that only costs classified as
``allowable'' will be reimbursable under a grant awarded under this
Part. Specifically, construction costs are the only costs that are
reimbursable.
Construction
This definition sets out the types of project costs that are
contemplated as being reimbursable under this Part. Only these costs
will be allowable under a grant from this program. This definition
closely tracks 49 U.S.C. 20154(h)(1). Subsection 20154(h)(1)(F) gave
the Secretary the authority to prescribe additional costs, other than
those specifically listed in Sec. 20154(h)(1), as allowable under this
Part. As the authority to promulgate this rule has been delegated to
FRA by the Secretary, subsection (6) makes clear that FRA has that
authority to prescribe additional costs. In addition, subsection (6)
also makes clear that architectural and engineering costs associated
with the project as well as costs incurred in compliance with
applicable environmental regulations are considered construction costs,
and will be allowable. Because FRA has some discretion with regard to
this definition, commenters are invited to suggest additional costs
that might be allowable under the regulation.
FRA
This definition makes clear that when the term ``FRA'' is used in
this Part, it refers to the Federal Railroad Administration.
Improvement
The program established by the Act is intended to provide funds for
both rail line relocation and improvement projects. This definition
makes clear the types of projects that fall under the category of
``improvements.'' FRA considers improvements to be projects such as
those that repair defective aspects of a rail system's infrastructure,
projects that enhance an existing system to provide for improved
operations, or new construction projects that result in better
operational efficiencies. Examples include track work that increases
the class of track, signal system improvements, and lengthening
existing sidings or building new sidings. FRA invites comments on the
definition of ``improvement'' as well as the types of projects that
should be considered. Commenters should keep in mind, however, that any
project must achieve the goals set forth in Sec. 262.7(a)(1).
Non-Federal Share
This definition indicates that Non-Federal share means the portion
of the allowable cost of the local rail line relocation or improvement
project that is being paid for through cash or in-kind contributions by
a State or other non-Federal entity.
Private Entity
This definition makes clear what types of entities are contemplated
under Sec. 262.13. A private entity must be a nongovernmental entity,
but can be a domestic or foreign entity and can be either for-profit or
not-for-profit.
Project
This definition makes clear that the term ``project'' refers only
to a local rail line relocation or improvement project
[[Page 1968]]
undertaken with funding from a grant from FRA under this Part.
Quality of Life
FRA is requesting comments on what factors should be considered
when measuring ``quality of life.'' The Act requires only that the
definition include first responders'' emergency response time, the
environment, noise levels, and other factors as determined by FRA.
Thus, Congress left FRA some discretion in determining what else should
be considered under this definition. FRA believes ``quality of life''
should include factors associated with an individual's overall
enjoyment of life or a community's ability both to function and to
provide services to its residents at a reasonable level. Commenters are
invited to discuss specific factors that can measure these somewhat
amorphous concepts, as well as any other factors that may be
appropriate.
Real Property
This definition makes clear that ``real property'' refers to land,
including land improvements, structures and appurtenances thereto,
excluding movable machinery and equipment.
Relocation
This definition states what relocation consists of and provides the
distinction between the two types of rail line relocations. A lateral
relocation occurs when a rail line is horizontally moved from one
location to another, usually away from dense urban development, grade
crossings, etc., in an effort to allow trains to operate more
efficiently and the community surrounding the old line to function more
effectively. The typical example is moving a rail line that runs
through the middle of a town or city to a location outside of the town
or city.
A vertical relocation occurs when a rail line remains in the same
location, but the track is lifted above the ground, as with an
overpass, or is sunk below ground level, as with a trench. Vertical
relocations may be preferable when the community surrounding the rail
line still needs the line (for example, when a busy passenger station
is located on the line), but the line is causing problems because of
its location at grade.
Secretary
This definition makes clear that ``Secretary'' refers to the
Secretary of Transportation.
State
This definition is reprinted from SAFETEA-LU and can be found at 49
U.S.C. 20154(h)(3). It makes clear that, for the purposes of this Part
except for Sec. 262.17, any of the fifty States, political
subdivisions of the States, and the District of Columbia is a ``State''
and eligible for funding from this program. The definition also makes
clear, however, that for purposes of Sec. 262.17 only, ``State'' does
not include political subdivisions of States, but instead only the
fifty States and the District of Columbia.
Tangible Personal Property
This definition indicates that ``tangible personal property''
refers to property that has physical substance and can be touched, but
is not real property. Examples of tangible personal property include
machinery, equipment and vehicles.
Section 262.5 Allocation Requirements
This section is reprinted directly from SAFETEA-LU and can be found
at 49 U.S.C. 20154(d). It mandates that at least fifty percent of all
grant funds awarded under this Part out of funds appropriated for a
fiscal year be provided as grant awards of not more than $20,000,000
each. Designated, high-priority projects will be excluded from this
allocation formula. The statute states that the $20,000,000 amount will
be adjusted by the Secretary to reflect inflation for each fiscal year
of the program beginning in FY 2007. Under the Secretary's delegation
of rulemaking authority to FRA, however, FRA will make the annual
inflationary adjustment. In making the adjustment for inflation, FRA
will use guidance published by the Association of American Railroads
(AAR). Specifically, FRA will use the materials and supplies component
of the AAR Railroad Cost Indexes. FRA will make the adjustment each
October based on the most recent edition of the Cost Indexes.
Section 262.7 Eligibility
This section is reprinted directly from SAFETEA-LU and can be found
at 49 U.S.C. 20154(b). It sets out the eligibility criteria for
projects and declares that any state (or political subdivision of a
state) is eligible for a grant under this section for any construction
project for the improvement of a route or structure of a rail line that
either is carried out for the purpose of mitigating the adverse effects
of rail traffic on safety, motor vehicle, traffic flow, community
quality of life, or economic development, or involves a lateral or
vertical relocation of any portion of a rail line. Lateral relocation
refers to horizontally moving the rail line to another location while
vertical relocation refers to either lifting the rail line above the
ground or sinking it below the ground. Subpart (b) of this section also
makes clear that only costs associated with construction, as defined in
this Part, will be allowable costs for purposes of this Part.
Therefore, only construction costs will be eligible for reimbursement
under a grant agreement administered under this Part.
Section 262.9 Criteria for Selection of Rail Lines
This section is reprinted almost entirely from SAFETEA-LU and,
aside from subsection (f), can be found at 49 U.S.C. 20154. It sets out
the criteria for FRA to use in determining which projects should be
approved for grants under this Part. It mandates that the Secretary,
through FRA, consider the following factors in deciding whether to
award a grant to an eligible state (as defined in this Part):
The capability of the state (as defined in this part) to
fund the project without Federal grant funding;
The requirement and limitation relating to allocation of
grant funds provided in Sec. 262.5 of this Part;
Equitable treatment of the various regions of the United
States;
The effects of the rail line, relocated or improved as
proposed, on motor vehicle and pedestrian traffic, safety, community
quality of life, and area commerce; and
The effects of the rail line, relocated or improved as
proposed, on the freight and rail passenger operations on the rail
line.
In making the determination required by the first factor of the
State's capability to fund the project without Federal grant funding,
FRA will look at indicators such as the existence of authorized and
funded State programs for railroad improvement projects, the State's
use of available highway-rail grade crossing improvement funds provided
through 23 U.S.C. 130, and other indicia of credit worthiness such as
bond ratings. FRA welcomes comments on these indicators as well as
proposals for additional information that may be relevant in
determining the State's ability to fund the project without Federal
grant funding.
With regard to the third factor--equitable treatment of the various
regions of the United States--Congress did not indicate how the
geographical boundaries of the regions should be determined. For
purposes of this regulation, FRA is proposing to divide the country
into the same regions that FRA's Office of Safety divides the country
for enforcement purposes. FRA's regional boundaries take into account
factors such as density of rail
[[Page 1969]]
lines, frequency of rail operations, and population centers. For
example, FRA's Regions 1 and 2, which encompass all of Amtrak's
Northeast Corridor, contain many large cities, and have extensive
freight, commuter, and intercity passenger rail operations; cover much
less territory that FRA's Region 8, which encompasses the Pacific
Northwest, including States such as Montana, Wyoming, and Idaho that
have smaller populations, little or no commuter or intercity passenger
service, and less frequent freight rail operations. A map of FRA's
Regions is included as Appendix A. FRA is soliciting comments on this
proposed division of the country and welcomes suggestions for
alternative methods.
Subsection (f) states that FRA will consider the level of
commitment of non-Federal and/or private funds when determining whether
to award a grant under this program. This requirement was not listed in
Sec. 20154(c) of SAFETEA-LU, but the statute did not mandate that FRA
consider only the listed factors in determining whether to award a
grant to an eligible state. The listed factors are fairly
comprehensive, but FRA wants to retain the flexibility to consider
other factors, as well, that may not be readily apparent. Therefore,
FRA added a ``catch-all'' factor to the criteria. Subsection (f) allows
FRA to also consider any other factors that the agency deems relevant
to assessing the effectiveness and or efficiency of the grant
application in achieving the goals of the national program and
specifically mentions the level of financial commitment provided by
non-Federal and/or private entities noted in Sec. 20154(e)(4)(B). FRA
welcomes comments on this addition and any other potential factors that
the FRA may consider in determining whether to award a grant.
Section 262.11 Application Process
All grant applications submitted under this program must be
submitted to FRA through the Internet at http://www.grants.gov. All
Federal grant-making agencies are required to receive applications
through this website. Potential applicants should note that the
information below describes FRA's typical grant application
requirements. However, the specific requirements for individual grants
will be listed in the ``Instructions'' section for the particular grant
for which FRA is accepting applications.
The application process for funds appropriated under Sec. 20154
will differ depending on whether the grant is non-competitive or
discretionary (competitive). Non-competitive applications--usually
projects designated in the appropriations statute or in the Conference
Report accompanying an annual appropriation as high-priority--generally
must include the following: (1) A detailed project description; (2)
Standard Forms (SF) 424 --Application; SF 424A or C--Budget
Information; SF 424B or D--Assurances; Certifications and Assurances,
i.e. debarment/suspension/ineligibility, Drug-free Work Place;
Lobbying, Indirect Costs; SF 3881--Payment Information; SF 1194--
Authorized Signatures; and (3) an Audit History. Potential applicants
should keep in mind that these are the typical forms that FRA requests
with non-competitive applicants. FRA may not require all of these for a
particular application.
For a discretionary (competitive) grant, applicants will be
provided with certain basic information covering deadlines and
addresses for submitting statements of interest, the entities eligible
for funding, an estimate of the amount of funding available and the
expected number of awards, and the selection criteria for evaluating
statements of interest. A major responsibility of FRA's technical staff
will be development of a Source Selection Plan (SSP) to be used for
evaluating applications. The SSP will be available to all applicants.
All applicants should keep in mind that no funding will be
available for this program unless and until Congress appropriates
funding for it. SAFETEA-LU authorized, but did not appropriate, $350
million per fiscal year for each fiscal year 2006 through 2009. As of
the publication date of this Part, Congress has not appropriated any
funds for fiscal year 2006 or 2007. If Congress appropriates non-
competitive funds for a specific project under this Program, FRA will
notify the potential recipient of the appropriation. If Congress
approves funding for a discretionary grant or grants, FRA will publish
a Notice of Funds Availability in the Federal Register and eligible
applicants will be able to apply for a grant through http://www.grants.gov
.
Subsection (b) of this section mandates that, when submitting an
application, a state must submit a description of the anticipated
public and private benefits associated with each proposed rail line
relocation or improvement project. The determination of the benefits
must be developed in consultation with the owner and user of the rail
line being relocated and improved or other private entity involved in
the project. Since one of the factors that FRA will consider in
selecting projects is the level of commitment of non-Federal and/or
private funds available for the project (see proposed section
262.9(f)), applications should also identify the financial
contributions or commitments the state has secured from any private
entities that are expected to benefit from the proposed project. The
language for this subsection is based upon SAFETEA-LU requirements and
can be found at 49 U.S.C. 20154(e)(4)(A) and (B).
Subsection (c) of this section allows for a potential applicant to
request a meeting with the FRA Associate Administrator for Railroad
Development or his designee to discuss a project the potential
applicant is considering for financial assistance under this Part.
Subsection (c) does not require that such a meeting occur, but it has
been FRA's experience that pre-application meetings generally save the
potential applicant both time and money, and, therefore, FRA strongly
encourages potential applicants to schedule such a meeting.
Section 262.13 Matching Requirements
This section is reprinted entirely from SAFETEA-LU and can be found
at 49 U.S.C. Sec. 20154(e). It sets out the requirement that a State
(as defined in this Part) or other non-Federal entity shall pay at
least ten (10) percent of the shared costs of a project that is funded
in part by a grant awarded under this Part. The ten percent may be in
cash or in the form of the following in-kind contributions:
Real property or tangible personal property, whether
provided by the State (as defined by this Part) or a person for the
State;
The services of employees of the State or other non-
Federal entity, calculated on the basis of costs incurred by the State
or other non-Federal entity for the pay and benefits of the employees,
but excluding overhead and general administrative costs;
A payment of any costs that were incurred for the project
before the filing of an application for a grant for the project under
this section, and any in-kind contributions that were made for the
project before the filing of the application, if and to the extent that
the costs were incurred or in-kind contributions were made to comply
with a provision of a statute required to be satisfied in order to
carry out the project.
Finally, this section states that FRA will consider the feasibility
of seeking financial contributions or commitments from private entities
involved with the project in proportion to the anticipated
[[Page 1970]]
public and private benefits that accrue to such entities from the
project. FRA invites comments and suggestions from commenters on how
FRA can best accomplish this requirement. Since project sponsors are
most directly involved and familiar with the details of the proposed
projects and are required to submit a description of the anticipated
public and private benefits associated with each rail line relocation
or improvement project as a part of the application process, the
requirement to seek financial contributions or commitments from private
entities might best be accomplished by the project sponsors in
assembling the overall financial package to complete the project. This
could then be one of the factors to be evaluated by the FRA in deciding
whether to proceed with a project or in selecting one project over
another should there be more than one project competing for any
available funding.
Section 262.15 Environmental Assessment
This section clearly states to all grantees that, in order for FRA
to award funding for any project, the National Environmental Policy Act
(42 U.S.C. 4321 et seq.) (NEPA) and related laws, regulations and
orders must be complied with. NEPA mandates that before any ``major''
Federal action can take place, the Federal entity performing the action
must complete an appropriate environmental review. The use of Federal
funds in a project triggers the NEPA process. Thus, because FRA will be
providing Federal funds to grantees for local rail line relocation and
improvement projects, a completed NEPA review will be required before
the agency decides to approve any project. A State may be requested to
provide environmental information and/or fund the NEPA review, either
directly (if the entity administering the grant is a State agency with
statewide jurisdiction) or through a third party contract. FRA's NEPA
compliance will be governed by FRA's ``Procedures for Considering
Environmental Impacts'' (65 FR 28545) and the NEPA regulations of the
Council on Environmental Quality (40 CFR part 1500).
This section also notes several of the other environmental and
historic preservation statutes that must be considered during the NEPA
review. This is not, however, a comprehensive list of all environmental
and historic preservation statutes and implementing regulations that
must be considered, but instead merely illustrative of the issues that
a State may be required to address in the environmental review.
Section 261.17 Combining Grant Awards
This section is reprinted entirely from SAFETEA-LU and can be found
at 49 U.S.C. 20154(f). It allows for two or more States, but not
political subdivisions of States, pursuant to an agreement entered into
by the States, to combine any part of the amounts provided through
grants for a project under this Part, provided the project will benefit
each State and the agreement is not a violation of a law of any of the
States. SAFETEA-LU specifically excludes political subdivisions of
States from taking advantage of this section, but does not exclude the
District of Columbia.
Section 261.19 Closeout Procedures
The ``grant closeout'' is the process by which the FRA and grantee
perform final actions that document completion of work, administrative
requirements, and financial requirements of the grant agreement. FRA,
the grantee, and any other involved parties, such as an auditor, need
to fulfill these requirements promptly in order to avoid unnecessary
delays in grant closeout.
FRA will notify the grantee in writing 30 days before the end of
the grant period regarding what final reports are due, the dates by
which they must be received, and where they must be submitted. The
grantee will be required to submit the reports within 90 days after the
expiration or termination of the grant. Copies of any required forms
and instructions for their completion will be included with the
notification. The financial, performance, and other reports required as
a condition of the grant will generally include the following:
Final performance or progress report;
Financial Status Report (SF-269) or Outlay Report and
Request for Reimbursement for Construction Programs (SF-271);
Final Request for Payment;
Federally-Owned Property Report. A grantee must submit an
inventory of all Federally-owned property (as opposed to property
acquired with grant funds) for which it is accountable and request
disposition instructions from FRA if the property is no longer needed.
Upon receipt of this information, FRA will determine whether any
additional funds are due the grantee or whether the grantee needs to
refund any funds. FRA will also determine final costs and, if
necessary, make upward or downward adjustments to any allowable costs
within 90 days after receipt of reports and make prompt payment to the
grantee for any unreimbursed allowable costs. If the grantee has
received more funds than the total allowable costs, the grantee must
immediately refund to FRA any balance of unencumbered cash advanced
that is not authorized to be retained for use on other grants.
FRA will notify the grantee in writing that the grant has been
closed out. The grant agreement will in most cases be ready to be
closed out before receipt of the single audit report that covers the
period of the grant performance. Therefore, the grant will be closed
administratively without formal audit. The grant may be reopened later
to resolve subsequent audit findings.
The closeout of a grant does not affect FRA's right to disallow
costs and recover funds on the basis of a later audit or other review
and the grantee's obligation to return any funds due as a result of
later refunds, corrections, or other transactions.
IV. Regulatory Impact
A. Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
FRA has determined preliminarily that this action represents a
``significant regulatory action'' within the meaning of DOT's
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979) and
Executive Order 12866. This determination is based on a finding that
the rule may have an annual effect on the economy of $100 million or
more because Congress has authorized the appropriation of $350,000,000
per year for fiscal years 2006 through 2009. However, no funds to
implement the program were appropriated for fiscal year 2006 and no
funds were requested in the Administration's Fiscal Year 2007 budget
request. The NPRM was reviewed by the Office of Management and Budget
under E.O. 12866.
This section summarizes the estimated economic impact of the
proposed rule. As mandated by section 9002 of SAFETEA-LU, this
rulemaking proposes establishment of the basic elements of a funding
program for capital grants for local rail line relocation and
improvement projects. This regulation would affect only those entities
that voluntarily elected to apply for the capital grants under section
9002 and were selected to receive a grant under the program. It would
not impose any direct involuntary un-reimbursed costs on non-
participants. Prospective applicants will normally have available the
information needed to prepare applications for funding so these costs
would be minimal.
[[Page 1971]]
FRA has undertaken a preliminary evaluation of the economic impact
of this proposed regulatory action. However, because the number,
nature, and size of projects to be assisted would not be known until
funds are appropriated and specific applications are received, this
analysis is by necessity an estimate. Since the actual projects have
yet to be identified, it is also not possible at this stage to
ascertain the appropriate benefit/cost ratios. The only costs imposed
on the participants (States and political subdivisions) are the costs
associated with completing an application and providing the required
minimum ten percent non-Federal funding match.
FRA has also concluded that the local rail line relocation and
improvement projects capital grants program could generate both direct
and indirect benefits, providing economic, safety and environmental
benefits. Of the $350 million authorized to be appropriated annually,
fifty percent of all grant funds awarded are reserved for projects of
no more than $20 million each, adjusted for inflation. Lacking
specifics about individual projects, it is difficult to estimate
whether the benefits are anticipated to surpass the combined potential
direct costs to the Federal Government (potentially $350 million
annually) and to the entities that elect to participate in the program.
The statutory criteria for evaluating applications do not require a
cost/benefit analysis for each project but instead focus on the
capability of the state to fund the project without Federal grant
funding, the effects of the relocated or improved rail line on traffic,
safety, quality of life, area commerce, and freight and passenger
operations on the line. Because of the voluntary nature of
participation in the program, this regulatory action is not anticipated
to impose any non-reimbursed costs upon non-participants (relocation
assistance is an eligible program cost which would mitigate impacts to
non-participants). The FRA requests comments, information, and data
from the public and potential users concerning the economic impact of
implementing this rule and the local rail line relocation and
improvement projects capital grants program.
This rule is not anticipated to adversely affect, in a material
way, any sector of the economy. This rulemaking sets forth eligibility
and selection criteria for project proposals in the local rail line
relocation and improvement projects capital grants program, which will
result in only minimal cost to program applicants. In addition, this
proposed rule would not create a serious inconsistency with any other
agency's action or materially alter the budgetary impact of any
entitlements, grants, user fees, or loan programs.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354, 5 U.S.C.
601-612) requires a review of rules to assess their impact on small
entities. FRA is not able to certify that this proposed rule would not
have a significant impact on a substantial number of small entities and
seeks comments from the public. For government entities, the definition
of small entities is based on population served. As defined by the
Small Business Administration (SBA), this term means governments of
cities, counties, towns, townships, villages, school districts, or
special districts with a population of less than fifty thousand. States
are not included in the definition of small entity set forth in 5
U.S.C. 601, but political subdivisions of states may well fall into
this category. Given FRA's lack of knowledge about specific projects,
applicants or applications that might be filed if Congress appropriated
funds for the program, it is not possible to determine the number of
small government entities that may be involved in applications under
the local rail line relocation and improvement projects capital grants
program or the impacts to those entities from the program.
FRA has not conducted a regulatory flexibility assessment of this
proposed rule's impact on small entities. FRA views it as unlikely that
a small entity such as a local government would be disproportionately
impacted by the proposed rule. The capital grants for rail line
relocation program could certainly provide benefits to small entities,
such as local governments (political subdivisions of a State). The
funds being made available through this program could provide economic,
safety, and environmental benefits. Moreover, participation in the
local rail line relocation and improvement projects capital grants
program is voluntary. The statute requires a State or other non-Federal
entity to provide at least ten percent of the shared cost of a project
funded under this program. To the extent a small entity was providing
that non-Federal share, the impact would be calculated by the small
entity in deciding whether to file the application under the program.
At the same time, small governmental entities, limited by Section
9002 to political subdivisions of a State, would likely benefit from
the economic opportunities resulting from infrastructure improvements
to existing rail lines that connect small governmental entities to the
national railroad system. As discussed in greater detail in the
background section of this NPRM, rail infrastructure that was once
critical to many communities can now present problems as well as
benefits. To the extent the program can be used by a local government
to address an existing problem, it could provide a substantial benefit
to the community. The cost to governmental entities of applying for the
program would be minimal since applicants will normally have available
most of the information needed to prepare applications for a grant
under Section 9002.
Written public comments that will clarify the number of affected
small entities and what the impacts will be for the affected small
entities are requested. FRA especially encourages political
subdivisions that may be considered to be small entities to participate
in the comment process and submit written comments to the docket.
Small entities, other than political subdivisions of states, are
not eligible to apply for relocation or improvement funds, though on a
voluntary basis a non-governmental small entity could agree to supply
the non-Federal match. The statute also requires the Secretary to
consider the feasibility of seeking financial contributions or
commitments from private entities involved with a project in proportion
to the expected benefits that accrue to such private entities. Project
beneficiaries could include small entities; however, without details
about specific projects, it is not possible to realistically estimate
whether impacts to non-governmental small entities in these
circumstances is likely. FRA invites public comment on this component
of the analysis, as well.
C. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
addresses the collection of information by the Federal government from
individuals, small businesses and State and local governments and seeks
to minimize the burdens such information collection requirements might
impose. A collection of information includes providing answers to
identical questions posed to, or identical reporting or record-keeping
requirements imposed on ten or more persons, other than agencies,
instrumentalities, or employees of the United States. This Notice of
Proposed Rulemaking contains information requirements that would apply
to States or political subdivisions of States that file applications
for Federal funding for local rail line relocation and improvement
projects.
[[Page 1972]]
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the new information collection requirements
and the estimated time to fulfill each requirement are as follows:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Respondent Average time per Total annual
CFR section--49 CFR universe Total annual responses response burden hours Total annual burden cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
262.11--Application Process..... 50 States........ 7 applications............ 580 hours......... 4,060 $0 (Cost incl. in RIA).
--Requests for Meeting with 50 States........ 5 requests................ 30 minutes........ 3 $120.
FRA.
--Meeting Discussions....... 50 States........ 5 meetings................ 2 hours........... 10 $700.
262.15--Environmental Assessment 50 States........ 7 documents............... 200 hours......... 1,400 $0 (Cost incl. in RIA).
262.19--Close-Out Procedures.... 50 States........ 7 document sets........... 6 hours........... 42 $1,680.
--Inspection of All 50 States........ 7 reports................. 80 hours.......... 560 $39,200.
Construction Report.
--------------------------------------------------------------------------------------------------------------------------------------------------------
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), the FRA solicits comments concerning: whether these
information collection requirements are necessary for FRA to properly
perform its functions, including whether the information has practical
utility; the accuracy of FRA's estimates of the burden of the
information collection requirements; the quality, utility, and clarity
of the information to be collected; and whether the burden of
collecting information on those who are to respond, including through
the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, at 202-493-6292.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail
Stop 21, Washington, DC 20590. Comments may also be submitted via e-
mail to Mr. Brogan at the following address: robert.brogan@fra.dot.gov.
OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.
D. Environmental Impact
FRA has evaluated these regulations in accordance with its
procedures for ensuring full consideration of the potential
environmental impacts of FRA actions, as required by the National
Environmental Policy Act (42 U.S.C. 4321 et seq.) (NEPA) and related
directives (see FRA Policy Statement on Procedures for Considering
Environmental Impacts, 64 FR 28545). FRA has concluded that the
issuance of this NPRM, which establishes regulations governing the
awarding of grants for local rail line relocation and improvement
projects, does not have a potential impact on the environment and does
not constitute a major Federal action requiring an environmental
assessment or environmental impact statement. Because all projects
undertaken with grants administered under this section will involve
Federal funding, appropriate NEPA analyses, including studies of any
potential environmental justice issues, will be necessary prior to the
award of any grant.
E. Federalism Implications
FRA has analyzed this NPRM in accordance with the principles and
criteria contained in Executive Order 13132, issued on August 4, 1999,
which directs Federal agencies to exercise great care in establishing
policies that have federalism implications. See 64 FR 42355. This NPRM
will not have a substantial effect on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among various levels of government. This
NPRM will not have federalism implications that impose any direct
compliance costs on State and local governments. There will be costs
associated with the submission of applications, but they are
discretionary and will only be incurred should a State or local
government wish to apply for funding. Otherwise, this NPRM directs how
Federal funds will go to the States, and thus, there are no federalism
implications.
F. Unfunded Mandate Reform Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in the expenditure by State, local, and tribal governments, in
the aggregate, or by the private sector, of $100,000,000 or more
(adjusted annually for inflation) in any 1 year, and before
promulgating any final rule for which a general notice of proposed
rulemaking was published, the agency shall prepare a written
statement'' detailing the effect on State, local, and tribal
governments and the private sector.
There are no ``regulatory actions'' contemplated within the meaning
of the Unfunded Mandate Reform Act of 1995. Furthermore, this grant
program is not an ``unfunded mandate,'' in that there will be no money
until Congress specifically appropriates it. The only requirements in
this NPRM for funding other than grant funds provided to State and
local governments is the ten percent matching requirement, which may
[[Page 1973]]
include costs associated with NEPA compliance. That requirement,
however, is specifically set forth in Sec. 9002 of SAFETEA-LU and FRA
need not assess its effect. This NPRM, therefore, will not result in
the expenditure by State, local, or tribal governments, in the
aggregate, of $100,000,000 or more in any one year, and thus
preparation of such a statement is not required.
G. Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' See
66 FR 28355 (May 22, 2001). Under the Executive Order a ``significant
energy action'' is defined as any action by an agency that promulgates
or is expected to lead to the promulgation of a final rule or
regulation, including notices of inquiry, advance notices of proposed
rulemaking, and notices of proposed rulemaking: (1)(i) That is a
significant regulatory action under Executive Order 12866 or any
successor order, and (ii) is likely to have a significant adverse
effect on the supply, distribution, or use of energy; or (2) that is
designated by the Administrator of the Office of Information and
Regulatory Affairs as a significant energy action. FRA has evaluated
this NPRM in accordance with Executive Order 13211. FRA has determined
that this NPRM is not likely to have a significant adverse effect on
the supply, distribution, or use of energy. Consequently, FRA has
determined that this NPRM is not a ``significant energy action'' within
the meaning of the Executive Order.
H. Privacy Act Statement
Anyone is able to search the electronic form of all comments
received into any of DOT's dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc). You may review DOT's
complete Privacy Act Statement published in the Federal Register on
April 11, 2000 (Volume 65, Number 70, Pages 19477-78) or you may visit
http://dms.dot.gov.
V. The Proposed Rule
For the reasons discussed in the preamble, the Federal Railroad
Administration proposes to add part 262 to Title 49, Code of Federal
Regulations, as follows:
PART 262--PROGRAM FOR CAPITAL GRANTS FOR RAIL LINE RELOCATION AND
IMPROVEMENT PROJECTS
Table of Contents for Proposed Part 262
Sec.
262.1 Purpose.
262.3 Definitions.
262.5 Allocation requirements.
262.7 Eligibility.
262.9 Criteria for selection of rail lines.
262.11 Application process.
262.13 Matching requirements.
262.15 Environmental assessment.
262.17 Combining grant awards.
262.19 Close-out procedures.
Authority: 49 U.S.C. 20154 and 49 CFR 1.49.
Sec. 262.1 Purpose.
The purpose of this part is to carry out the statutory mandate set
forth in Sec. 9002 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act--A Legacy for Users (Pub. L. 109-59) that the
Secretary of Transportation promulgate regulations implementing new
Sec. 20154 of Title 49 of the United States Code, which establishes a
capital grants program to provide financial assistance for local rail
line relocation and improvement projects.
Sec. 262.3 Definitions.
Act means the Safe, Accountable, Flexible, Efficient Transportation
Equity Act--A Legacy for Users (Pub. L. 109-59).
Administrator means the Federal Railroad Administrator, or his or
her delegate.
Allowable costs means those project costs for which Federal funding
may be expended under this part. Only construction and construction-
related costs will be allowable.
Construction means supervising, inspecting, demolition, actually
building, and incurring all costs incidental to building a project
described in Sec. 262.9 of this part, including bond costs and other
costs related to the issuance of bonds or other debt financing
instruments and costs incurred by the Grantee in performing project
related audits, and includes:
(1) Locating, surveying, and mapping;
(2) Track and related structure installation, restoration, and
rehabilitation;
(3) Acquisition of rights-of-way;
(4) Relocation assistance, acquisition of replacement housing
sites, and acquisition and rehabilitation, relocation, and construction
of replacement housing;
(5) Elimination of obstacles and relocation of utilities; and
(6) Any other activities as defined by FRA, including architectural
and engineering costs, and costs associated with compliance with the
National Environmental Policy Act, National Historic Preservation Act,
and related statutes, regulations, and orders.
FRA means the Federal Railroad Administration.
Improvement means repair or enhancement to existing rail
infrastructure, or construction of new rail infrastructure, that
results in improvements to the efficiency of the rail system and the
safety of those affected by the system.
Non-Federal share means the portion of the allowable cost of the
local rail line relocation or improvement project that is being paid
for through cash or in-kind contributions by a state or other non-
Federal entity.
Private Entity means any domestic or foreign nongovernmental for-
profit or not-for-profit organization.
Project means the local rail line relocation or improvement for
which a grant is requested under this section.
Quality of Life means the level of social, environmental and
economic satisfaction and well being a community experiences, and
includes factors such first responders' emergency response time, the
environment, grade crossing safety, and noise levels.
Real Property means land, including land improvements, structures
and appurtenances thereto, excluding movable machinery and equipment.
Relocation means moving a rail line vertically or laterally to a
new location. Vertical relocation refers to raising above the current
ground level or sinking below the current ground level a rail line.
Lateral relocation refers to moving a rail line horizontally to a new
location.
Secretary means the Secretary of Transportation.
State except as used in Sec. 262.17, means any of the fifty United
States, a political subdivision of a State, and the District of
Columbia. In Sec. 262.17, State means any of the fifty United States
and the District of Columbia.
Tangible personal property means property, other than real
property, that has a physical existence and an intrinsic value,
including machinery, equipment and vehicles.
Sec. 262.5 Allocation requirements.
At least fifty percent of all grant funds awarded under this
section out of funds appropriated for a fiscal year shall be provided
as grant awards of not more than $20,000,000 each. Designated, high-
priority projects will be excluded from this allocation formula. FRA
will adjust the $20,000,000 amount to reflect real inflation for fiscal
years beginning
[[Page 1974]]
after fiscal year 2006 based on the materials and supplies component
from the all-inclusive index of the AAR Railroad Cost Indexes.
Sec. 262.7 Eligibility.
(a) A state is eligible for a grant from FRA under this section for
any construction project for the improvement of the route or structure
of a rail line that either:
(1) Is carried out for the purpose of mitigating the adverse
effects of rail traffic on safety, motor vehicle traffic flow,
community quality of life, or economic development; or
(2) Involves a lateral or vertical relocation of any portion of the
rail line.
(b) Only costs associated with construction will be considered
allowable costs.
Sec. 262.9 Criteria for Selection of Rail Lines.
FRA will consider the following factors in determining whether to
award a grant to an eligible State under this part:
(a) The capability of the State to fund the rail line relocation
project without Federal grant funding;
(b) The requirement and limitation relating to allocation of grant
funds provided in Sec. 262.7;
(c) Equitable treatment of various regions of the United States;
(d) The effects of the rail line, relocated or improved as
proposed, on motor vehicle and pedestrian traffic, safety, community
quality of life, and area commerce;
(e) The effects of the rail line, relocated as proposed, on the
freight rail and passenger rail operations on the line;
(f) Any other factors FRA determines to be relevant to assessing
the effectiveness and or efficiency of the grant application in
achieving the goals of the national program, including the level of
commitment of non-Federal and/or private funds to a project.
Sec. 262.11 Application process.
(a) All grant applications for opportunities funded under this
section must be submitted to FRA through http://www.grants.gov. Opportunities
to apply will be posted by FRA on http://www.grants.gov only after funds have
been appropriated for Capital Grants for Rail Line Relocation Projects.
The electronic posting will contain all of the information needed to
apply for the grant, including required supporting documentation.
(b) In addition to the information required with an individual
application, a State must submit a description of the anticipated
public and private benefits associated with each rail line relocation
or improvement project described in Sec. 262.7(a)(1) and (2). The
determination of such benefits shall be developed in consultation with
the owner and user of the rail line being relocated or improved or
other private entity involved in the project. The State should also
identify any financial contributions or commitments it has secured from
private entities that are expected to benefit from the proposed
project.
(c) Potential applicants may request a meeting with the FRA
Associate Administrator for Railroad Development or his designee to
discuss the nature of the project being considered.
Sec. 262.13 Matching requirements.
(a) A State or other non-Federal entity shall pay at least ten
percent of the construction costs of a project that is funded in part
by the grant awarded under this section.
(b) The non-Federal share required by sub-part (a) of this section
may be paid in cash or in-kind. In-kind contributions that are
permitted to be counted under this section are as follows:
(1) A contribution of real property or tangible personal property
(whether provided by the State or a person for the State) needed for
the project;
(2) A contribution of the services of employees of the State or
other non-Federal entity or allowable costs, calculated on the basis of
costs incurred by the State or other non-Federal entity for the pay and
benefits of the employees, but excluding overhead and general
administrative costs;
(3) A payment of any allowable costs that were incurred for the
project before the filing of an application for a grant for the project
under this section, and any in-kind contributions that were made for
the project before the filing of the application; if and to the extent
that the costs were incurred or in-kind contributions were made, as the
case may be, to comply with a provision of a statute required to be
satisfied in order to carry out the project.
(c) In determining whether to approve an application, FRA will
consider the feasibility of seeking financial contributions or
commitments from private entities involved with the project in
proportion to the expected benefits determined under Sec. 262.11(b) of
this Part that accrue to such entities from the project.
Sec. 262.15 Environmental assessment.
The provision of grant funds by FRA under this Part is subject to a
variety of environmental and historic preservation statutes and
implementing regulations including, but not limited to, the National
Environmental Policy Act (NEPA) (42 U.S.C. 4332 et seq.), Section 4(f)
of the Department of Transportation Act (49 U.S.C. 303(c)), the
National Historic Preservation Act (16 U.S.C. 470(f)), and the
Endangered Species Act (16 U.S.C. 1531). Appropriate environmental and
historic documentation must be completed and approved by the
Administrator prior to a decision by FRA to approve a project for
construction. FRA's ``Procedures for Considering Environmental
Impacts'' (65 FR 28545 (May 26, 1999)) or any replacement environmental
review procedures that FRA may later issue and the NEPA regulation of
the Council on Environmental Quality (40 CFR Part 1500) will govern
FRA's compliance with applicable environmental and historic
preservation review requirements. Applicants will be expected to fund
costs associated with FRA NEPA compliance. Those costs will be
considered allowable costs should FRA and the state enter into a grant
agreement.
Sec. 262.17 Combining grant awards.
Two or more States, but not political subdivisions of States, may,
pursuant to an agreement entered into by the States, combine any part
of the amounts provided through grants for a project under this section
provided:
(a) The project will benefit each of the States entering into the
agreement; and
(b) The agreement is not a violation of the law of any such State.
Sec. 262.19 Close-out procedures.
(a) Thirty days before the end of the grant period, FRA will notify
the state that the period of performance for the grant is about to
expire and that close-out procedures will be initiated.
(b) Within 90 days after the expiration or termination of the
grant, the state must submit to FRA any or all of the following
information, depending on the terms of the grant:
(1) Final performance or progress report;
(2) Financial Status Report (SF-269) or Outlay Report and Request
for Reimbursement for Construction Programs (SF-271);
(3) Final Request for Payment (SF-270);
(4) Patent disclosure (if applicable);
(5) Federally-owned Property Report (if applicable)
(c) If the project is completed, within 90 days after the
expiration or termination of the grant, the State shall complete a full
inspection of all construction work completed under the grant and
submit a report to FRA. If the project is not completed, the State
shall
[[Page 1975]]
submit a report detailing why the project was not completed.
(d) FRA will review all closeout information submitted, and adjust
payments as necessary. If FRA determines that the State is owed
additional funds, FRA will promptly make payment to the State for any
unreimbursed allowable costs. If the State has received more funds than
the total allowable costs, the State must immediately refund to the FRA
any balance of unencumbered cash advanced that is not authorized to be
retained for use on other grants.
(e) FRA will notify the State in writing that the grant has been
closed out.
Issued in Washington, DC, on December 19, 2006.
Joseph H. Boardman,
Federal Railroad Administrator.
BILLING CODE 4910-06-P
[GRAPHIC] [TIFF OMITTED] TP17JA07.001
[FR Doc. 07-45 Filed 1-16-07; 8:45 am]
BILLING CODE 4910-06-C