Federal Register / Vol. 72, No. 10 / Wednesday, January 17, 2007 / Proposed Rules 1965 

Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

This proposed rule also is not subject 

to Executive Order 13045 ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it is not 

economically significant. 

Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Because it is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866 or a ‘‘significant energy 

action,’’ this action is also not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). 

National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTA), 15 U.S.C. 272, 

requires Federal agencies to use 

technical standards that are developed 

or adopted by voluntary consensus to 

carry out policy objectives, so long as 

such standards are not inconsistent with 

applicable law or otherwise 

impracticable. In reviewing program 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. Absent 

a prior existing requirement for the state 

to use voluntary consensus standards, 

EPA has no authority to disapprove a 

program submission for failure to use 

such standards, and it would thus be 

inconsistent with applicable law for 

EPA to use voluntary consensus 

standards in place of a program 

submission that otherwise satisfies the 

provisions of the Act. Redesignation is 

an action that affects the status of a 

geographical area but does not impose 

any new requirements on sources. Thus, 

the requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen oxides, Ozone, 

Volatile organic compounds. 

40 CFR Part 81 

Air Pollution Control, Environmental 

protection, National parks, Wilderness 

areas. 

Dated: January 4, 2007. 

Bharat Mathur, 

Acting Regional Administrator, Region 5. 

[FR Doc. E7–520 Filed 1–16–07; 8:45 am] 

BILLING CODE 6560–50–P 

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). 

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 

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1This 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. 

2A ton of any commodity transported one-mile. 

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. 

4The ReTRAC project is expected to cost in 

excess of $260,000,000. 

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. 

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. 

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 tonmiles 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

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. 

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 § 20154, which establishes 

the basic elements of a funding program 

for capital grants for local rail line 

relocation and improvement projects. 

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Subsection (b) of the new § 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 Sectionby-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-bySection 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 § 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 § 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 § 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 § 262.7(a)(1). 

Non-Federal Share 

This definition indicates that NonFederal 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 nonFederal entity. 

Private Entity 

This definition makes clear what 

types of entities are contemplated under 

§ 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 

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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 

§ 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 § 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 § 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 

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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 § 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 

§ 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 grantmaking 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 § 20154 will differ 

depending on whether the grant is noncompetitive 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 noncompetitive 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. § 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 inkind 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 

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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. 

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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 nonreimbursed 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 nonFederal 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. 

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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: 

CFR section—49 CFR Respondent 

universe 

Total annual 

responses 

Average time 

per response 

Total annual 

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 FRA ......... 50 States ... 5 requests .............. 30 minutes .. 3 $120. 

—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 Construction Report 50 States ... 7 reports ................ 80 hours ...... 560 $39,200. 

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 

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include costs associated with NEPA 

compliance. That requirement, however, 

is specifically set forth in § 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. 

§ 262.1 Purpose. 

The purpose of this part is to carry out 

the statutory mandate set forth in § 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 § 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. 

§ 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 § 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 inkind 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 § 262.17, 

means any of the fifty United States, a 

political subdivision of a State, and the 

District of Columbia. In § 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. 

§ 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 

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after fiscal year 2006 based on the 

materials and supplies component from 

the all-inclusive index of the AAR 

Railroad Cost Indexes. 

§ 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. 

§ 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 § 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. 

§ 262.11 Application process. 

(a) All grant applications for 

opportunities funded under this section 

must be submitted to FRA through 

www.grants.gov. Opportunities to apply 

will be posted by FRA on 

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 

§ 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. 

§ 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 nonFederal 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 § 262.11(b) of 

this Part that accrue to such entities 

from the project. 

§ 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. 

§ 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. 

§ 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 closeout 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 

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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 

[FR Doc. 07–45 Filed 1–16–07; 8:45 am] 

BILLING CODE 4910–06–C 


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