[Code of Federal Regulations]

[Title 49, Volume 4]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 49CFR266.17]



[Page 841-846]

 

                        TITLE 49--TRANSPORTATION

 

       CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF 

                             TRANSPORTATION

 

PART 266_ASSISTANCE TO STATES FOR LOCAL RAIL SERVICE UNDER SECTION 5 

OF THE DEPARTMENT OF TRANSPORTATION ACT--Table of Contents

 

Sec. 266.17  Applications.



    (a) General. (1) Applications for planning assistance shall comply 

with paragraphs (b), (c) and (e) of this section.

    (2) Applications for rail service continuation assistance shall 

comply with paragraphs (b), (c), (d) and (f) of this section.

    (3) Applications for acquisition assistance shall comply with 

paragraphs (b), (c), (d) and (g) of this section.

    (4) Applications for rehabilitation or improvement assistance and 

rail facility construction assistance shall comply with paragraphs (b), 

(c), (d) and (h) of this section.



[[Page 842]]



    (5) Applications for substitute service assistance shall comply with 

paragraphs (b), (c), (d) and (i) of this section.

    (b) Submission. (1) Applications shall be submitted by the 

designated State agency using the standard forms contained in Attachment 

M of Office of Management and Budget Circular No. A-102 (``OMB Circular 

A-102''). Each item submitted in response to a requirement of this 

section shall reference that requirement by subsection, paragraph, and 

subparagraph. Each application shall be consistent with the current 

State Rail Plan and analyzed in it.

    (2) A State may apply for planning assistance to cover prospective 

costs at any time during the planning process.

    (3) Exhibits previously filed with the Administrator need not be 

refiled unless the prior filing has been rendered obsolete by changed 

circumstances. Such prior filing shall be appropriately referenced by 

source, location of data and date of submittal.

    (c) Contents. Each application shall include:

    (1) Full name and principal business address of the applicant;

    (2) Name, title, address and phone number of the person to whom 

correspondence regarding the application should be addressed;

    (3) Budget estimates for the total amount of assistance required for 

projects or planning;

    (4) Applicant's proposed means of furnishing its share of the total 

costs of the projects, as well as copies of executed agreements between 

the agency and any third party which may be providing the non-Federal 

share or a portion thereof;

    (5) Assurance by the chief executive officer of the applicant that 

the Federal funds provided under the Act will be used solely for the 

purpose for which the assistance will be provided and in conformity with 

limitations on expenditures under the Act and applicable regulations;

    (6) Evidence that the applicant has established in accordance with 

Attachment G of OMB Circular A-102, adequate procedures for financial 

control, accounting and performance evaluation in order to assure proper 

use of the Federal funds;

    (7) Assurance by applicant's chief executive officer that the timing 

of all advances by the applicant will comply with the Department of 

Treasury advance financing regulations (31 CFR part 205);

    (8) Statement as to whether the applicant prefers to receive 

disbursement of Federal funds by advance payment or reimbursement;

    (9) Opinion of applicant's legal counsel showing that counsel is 

familiar with the corporate or other organizational powers of the 

applicant, that the applicant is authorized to make the application, 

that the applicant is eligible to participate in the Rail Service 

Assistance Program in accordance with the provisions of the Act and this 

part, and that the applicant has the requisite authority to carry out 

actions proposed in the application and to assume the responsibilities 

and obligations created thereby;

    (10) Assurances that the applicant will comply with and that the 

program will be conducted in accordance with the following Federal laws, 

policies, regulations and pertinent directives:

    (i) Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et 

seq., and 49 CFR part 21;

    (ii) Section 905 of the Railroad Revitalization and Regulatory 

Reform Act of 1976, 45 U.S.C. 803, and 49 CFR part 265;

    (iii) The Rehabilitation Act of 1973, 29 U.S.C. 794 and 49 CFR part 

27 (44 FR 31442, May 31, 1979) relating to non-discrimination on the 

basis of handicap; and

    (iv) The State and Local Fiscal Assistance Act of 1972, 31 U.S.C. 

1221 et seq. and 31 CFR part 51; and

    (11) When two or more States desire to combine their entitlements or 

any portion of them for the purpose of funding a project, certification 

of the Governor or the Governor's delegate of each State involved that 

it is a party to an interstate agreement as required under section 

5(h)(4) of the Act (49 U.S.C. 1654(h)(4)). Such certification shall 

include the amount of money to be used from each State's entitlement and 

which State is to enter into a grant for the project.



[[Page 843]]



    (d) Additional contents. In addition to meeting the requirements of 

paragraphs (b) and (c) of this section each application except when 

planning assistance is requested, shall include evidence that the agency 

submitting the application has the statutory authority and 

administrative jurisdiction to develop, promote, supervise and support 

safe, adequate, and efficient rail services; that it employs or will 

employ, directly or indirectly, sufficient trained and qualified 

personnel; that it maintains or will maintain adequate programs of 

investigation, research, promotion, and development with provision for 

public participation; and that it is designated and directed solely, or 

in cooperation with other State agencies, to take all practicable steps 

to improve transportation safety and to reduce transportation related 

energy utilization and pollution.

    (e) Planning assistance. In addition to meeting the requirements of 

paragraphs (b) and (c) of this section, each application for planning 

assistance shall include a Planning Work Program which, together with 

such other information the State may choose to submit, demonstrates to 

the satisfaction of the Administrator that the State's proposed use of 

planning assistance will produce a State Rail Plan, or an update, 

amendment or revision which meets the requirements of Sec. 266.15 of 

this part. The Planning Work Program shall include the following 

information:

    (1) An explanation of how the State Rail Plan will be related to the 

overall planning process for transportation within the State. This 

explanation shall concentrate on the expectations of the State for the 

future of local rail freight services and consider such factors as 

likelihood of profitability of existing rail lines, necessity of rail 

service continuation payments, State acquisition of rail lines, use of 

alternate modes of transportaion in lieu of rail freight service, and 

other long-term alternatives;

    (2) A description of the methods by which the State will involve 

local and regional governmental bodies and the public generally in its 

rail planning process, including its methods of providing for equitable 

distribution of resources;

    (3) An identification of the data to be obtained on the rail network 

and rail services in the State, the sources of this data, and the 

methodology to be employed in the collection of the data;

    (4) A description of the method by which the State will develop the 

State Rail Plan, including a brief description of discrete tasks or 

activities to be accomplished; and

    (5) A list of the individuals responsible for the planning, a work 

schedule and a budget.

    (f) Rail service continuation assistance. In addition to meeting the 

requirements of paragraphs (b), (c), and (d) of this section, each 

application for rail service continuation assistance shall include the 

following:

    (1) The amount of the estimated rail service continuation payment 

for each line; and

    (2) A description of the arrangements which the applicant has made 

for operation of the rail services to be subsidized including copies of 

the proposed operating agreements, leases, or other compensation 

agreements under which service is to be provided, and the results of the 

application's preaward audit of proposed operators and equipment leasing 

companies if the equipment to be used in providing the rail service is 

to be leased by the proposed operator.

    (g) Acquisition assistance. In addition to meeting the requirements 

of paragraphs (b), (c), and (d) of this section, each application for 

acquisition assistance shall include the following:

    (1) Copies of the results of a title search, and the basis for the 

proposed acquisition price including two independent valuation 

appraisals by qualified appraisers. Such appraisals shall be performed 

in accordance with the ``Uniform Appraisal Standards for Federal Land 

Acquisition'' proposed by the Interagency Land Acquisition Conference 

and shall be based on the results of a title search and comparable sales 

and shall take cognizance of all easements, encumbrances and 

restrictions that may affect the value of the property. Such appraisals 

shall be reviewed by a State Review appraiser to establish just 

compensation;



[[Page 844]]



    (2) Written assurance that the acquisition is being undertaken in 

accordance with 49 CFR 25.253, 25.255, 25.257, and 25.259 to the 

greatest extent practicable under State law and fully in compliance with 

49 CFR 25.261(a) and 25.263;

    (3) Written assurance that the owner of the property to be acquired 

has been advised of the requirements of 49 CFR 25.259 or will be advised 

of such requirements prior to the consummation of the acquisition;

    (4) A description of the necessary steps, and timing for completion 

of the acquisition;

    (5) When rail service is to be immediately provided over the line, a 

description of the arrangements which the applicant has made for 

operation of the rail service, including copies of the proposed 

operating agreements, leases, and other compensation agreements under 

which the service is to be provided, and a description of the means by 

which the State will continue rail service on the property to be 

acquired once assistance under the Act is terminated;

    (6) For applications regarding rail banking, evidence that the 

properties for which assistance is requested have potential for rail 

freight service such as plans for agricultural development or existence 

of fossil fuel reserves, the State's anticipated timetable for returning 

the line to service, and its proposed use of the property while it is 

out of service including its maintenance plans; and

    (7) Evidence that the anticipated benefits and costs of the proposed 

acquisition have been analyzed in accordance with the methodology 

established by the State under Sec. 266.15(c)(5) of this part.

    (h) Rehabilitation or improvement assistance and rail facility 

construction assistance. (1) In addition to meeting the requirements of 

paragraphs (b), (c), and (d) of this section, each application for 

rehabilitation or improvement assistance and rail facility construction 

assistance shall include the following:

    (i) A detailed estimate of the materials and labor required to 

complete the work, the total estimated costs of the work, the estimated 

numbers and kinds of ties and other material, the milepost termini 

involved, and a schedule for completion of the work;

    (ii) Evidence that the anticipated benefits and costs of the 

proposed acquisition have been analyzed in accordance with the 

methodology established by the State under Sec. 266.15(c)(5) of this 

part;

    (iii) When rehabilitation assistance is requested--

    (A) A copy of the document by which funds will be granted or loaned 

(at an interest rate determined by the State) to the owner of the rail 

properties or the operator of the rail service related to the project; 

and

    (B) An assurance by the chief executive officer of the applicant 

that:

    (1) Repaid loan funds and interest accumulated with respect to such 

funds will not be loaned or granted without the prior written approval 

of the Administrator;

    (2) The Federal share of repaid loan funds will be placed in an 

interest-bearing account or with the prior written approval of the 

Administrator will be deposited by the borrower, for the benefit and use 

of the State, in a bank which has been designated by the Secretary of 

Treasury in accordance with 12 U.S.C. 265; and

    (3) If the rehabilitated or improved facilities are not used for 

rail freight service during the useful life of the improvement the 

Federal share of the fair market value of the improvement or facility 

will be placed in an interest-bearing account or with the prior written 

approval of the Administrator will be deposited by the owner of the rail 

properties, for the benefit and use of the State, in a bank which has 

been designated by the Secretary of the Treasury in accordance with 12 

U.S.C. 265;

    (iv) An assurance by chief executive officer of the applicant that 

rehabilitated or improved facilities or newly constructed facilities 

will be maintained to prevent deterioration below the speed at which the 

line could be operated upon completion of the proj ect during the period 

of time established as the payback period in the benefit-cost analysis 

of the project;

    (2) In addition to meeting the requirements of paragraphs (b), (c), 

and



[[Page 845]]



(d) and (h)(1) of this section, each application for a project eligible 

under Sec. 266.7(b)(2)(i) (if the Commission has made a finding 

granting the application for abandonment and discontinuance) (ii), (3) 

or (4) shall also include the following:

    (i) An indication of which of the following methods will be used to 

complete the work, including proposed contracts unless the work will be 

performed under method (A):

    (A) On an actual cost basis by the operator or the applicant;

    (B) By contracting for the work in accordance with Attachment O to 

OMB Circular A-102; or

    (C) Under an existing continuing contract between the operator and 

another firm provided that the applicant can demonstrate the the costs 

are comparable to those under paragraph (h)(2)(i) (A) or (B) of this 

section; and

    (ii) A description of the plans for inspection of the work including 

identification and qualifications of the staff to be responsible for the 

inspection and a proposed schedule of inspections; and

    (iii) A description of the arrangements made for the operation of 

rail service over the property including copies of the proposed 

operating agreements, leases or other compensation agreements under 

which service is to be provided, and the proposed method of financing 

the operation of such rail service;

    (3) In addition to meeting the requirements of paragraphs (b), (c), 

(d), and (h)(1) of this section, each application for a project eligible 

under Sec. 266.7 (b)(1) or (2)(i) (if the Commission has not made a 

finding granting the application for abandonment discontinuance) shall 

include an assurance by the common carrier which operates service on or 

owns the line related to the project that if an application for a 

certificate of abandonment or discontinuance has been filed with the 

Commission the application will be withdrawn within a reasonable period 

following execution of a grant agreement and before Federal funds are 

disbursed for the project; and

    (4) When rail facility construction assistance is requested an 

assurance by the chief executive officer of the applicant that if the 

facility is abandoned, sold, or converted to non-rail freight use during 

its useful life, FRA will be compensated an amount computed by applying 

FRA's participation in the cost of constructing the facility to the fair 

market value of the facility at the time it is abandoned, sold, or 

converted to non-rail use.

    (i) Substitute service assistance. In addition to meeting the 

requirements of paragraphs (b), (c), and (d) of this section, each 

application for substitute service assistance shall include:

    (1) A detailed description of the substitute service project, 

including evidence that the cost and scope of the project are limited to 

that necessary to replace the rail service being discontinued;

    (2) Evidence that the anticipated benefits and costs of the proposed 

acquistion have been analyzed in accordance with the methodology 

established by the State under Sec. 266.15(c)(5) of this part;

    (3) For construction or improvement of fixed facilities, a 

description of the proposed work, including:

    (i) The cost and timing of the work; and

    (ii) An assurance by the chief executive officer of the applicant 

that the Federal share of the project will be repaid in accordance with 

Attachment N of OMB Circular A-102, if the properties are not used for 

rail freight service during the useful life of the project properties;

    (4) For relocation costs, the following assurances by the chief 

executive officer of the applicant:

    (i) When the rail line related to the project is eligible under 

section 5(k)(4)(A) of the Act (49 U.S.C. 1654(k)(4)(A)), an assurance 

that the applicant is requesting only such assistance as is needed to 

relocate the shippers which were receiving rail service on the line at 

the time the Commission found that the public convenience and necessity 

would permit discontinuance or abandonment of the rail service;

    (ii) When the rail line related to the project is eligible under 

section 5(k)(4)(B) of the Act (49 U.S.C. 1654(k)(4)(B)), an assurance 

that assistance is being requested to relocate only the shippers who 

received rail service on the line as of April 1, 1976; and



[[Page 846]]



    (iii) An assurance, and the basis therefor, that the shippers will 

not be relocated to a line with respect to which an application for a 

certificate of abandonment or discontinuance has been filed with the 

Commission or that if an application has been filed it will be withdrawn 

within a reasonable period following execution of a grant agreement and 

before Federal funds are disbursed for the project;

    (5) An assurance by the chief executive officer of the applicant 

that after completion of the substitute service project, additional 

Federal assistance will not be requested for the continuation of the 

rail freight service that the substitute service is designed to replace, 

unless the Administrator determines that circumstances have changed so 

that continuation of rail freight service is more cost-effective than 

continued use of the substitute service project;

    (6) A description of the arrangements made for operation of service 

where rail service is to be provided in conjunction with a substitute 

service project, including copies of proposed operating agreements, 

leases, or other compensation agreements under which service is to be 

provided; and

    (7) An assurance by the chief executive officer of the applicant 

that assistance provided will not be used to pay the non-Federal share 

under any Federal program.

    (j) Execution and filing of applications. (1) Each original 

application shall bear the date of execution and be signed by the chief 

executive officer of the agency submitting the application;

    (2) Each application for planning assistance, and two (2) copies 

thereof, shall be filed with the Administrator through the appropriate 

Federal Highway Administration Division Office;

    (3) Each application (excluding requests for planning assistance), 

and two (2) copies thereof, shall be filed with the Administrator 

through the appropriate Regional Director of Federal Assistance. A 

current list of the appropriate mailing addresses of the above officials 

will be provided by FRA to each State.