Notice Requesting Expressions of Interest in Implementing a High-Speed Intercity Passenger Rail Corridor, 76443-76448 [E8-29795]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 73, Number 242 (Tuesday, December 16, 2008)]
[Notices]
[Pages 76443-76448]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29795]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration


Notice Requesting Expressions of Interest in Implementing a High-
Speed Intercity Passenger Rail Corridor

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Notice Requesting Expressions of Interest.

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SUMMARY: Section 502 of the Passenger Rail Investment and Improvement 
Act of 2008, Public Law 110-432 (October 16, 2008), requires the 
Secretary of Transportation to ``issue a request for proposals for 
projects for the financing, design, construction, operation, and 
maintenance of a high-speed intercity passenger rail system operating 
within'' either the Northeast Corridor or a Federally designated high-
speed rail (HSR) corridor. To satisfy this requirement, the FRA is 
soliciting and encouraging the submission of Expressions of Interest 
for potential projects to finance, design, construct, operate, and 
maintain an improved HSR intercity passenger system in the Northeast 
Corridor or in one of ten Federally designated corridors. FRA envisions 
this as the first phase of a qualification process that Congress may 
follow with more specific actions regarding particular proposals in one 
or more corridors.

DATES: All Expressions of Interest submitted in response to this notice 
shall be submitted by 5 p.m. e.t. on Monday, September 14, 2009, in 
accordance with the instructions in ADDRESSES below. In order to gauge 
possible interest in this process, FRA is requesting that participants 
considering filing a response to this notice provide a letter with 
names and contact information by Friday, January 30, 2009. The initial 
letter will help FRA gauge interest in the Request for Expressions of 
Interest (RFEI) process and will facilitate future communications to 
participants, including invitation to a possible information session in 
the spring of 2009 to further invite questions from participants and to 
provide information and guidance regarding the RFEI process. Failure to 
provide a letter will not prevent participants from submitting an 
Expression of Interest in accordance with this notice.

ADDRESSES: Any questions, responses or Expressions of Interest in 
response to this notice shall be submitted under the docket number FRA-
2008-0140 by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590.
     Fax: 1-202-493-2251.
    Instructions: All submissions must include the agency name and 
docket number (FRA-2008-0140) for this RFEI process. Note that all 
comments received will be posted, without change, to https://
www.regulations.gov, including any personal information. 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. Internet users may access comments received by DOT at 
https://www.regulations.gov.
    If you wish to submit any information under a claim of 
confidentiality, submit

[[Page 76444]]

a version from which you have deleted the claimed confidential business 
information to the docket as specified above and send two copies of 
your complete submission, including the information you claim to be 
confidential business information, following the steps outlined in 
``Requests for Confidential Treatment'' in the SUPPLEMENTARY 
INFORMATION section of this document to Mr. David Valenstein as 
specified below.

FOR FURTHER INFORMATION CONTACT: For information from FRA, please 
contact Mr. David Valenstein, Office of Railroad Development, Federal 
Railroad Administration, 1200 New Jersey Avenue, SE., MS-20/W38-303, 
Washington, DC 20590. Phone (202) 493-6368.

SUPPLEMENTARY INFORMATION: FRA anticipates that participants will have 
questions during the RFEI process. In order to assure that all 
respondents have equal access to such questions and their answers, 
questions about this notice must be submitted to the docket as 
specified in ADDRESSES above. Any responses provided by the FRA will be 
posted to the docket; summary questions and answers will also be posted 
on the FRA Web page for the RFEI process.
    Background on High-Speed Rail (HSR): HSR is self-guided intercity 
passenger ground transportation that is time competitive with air and/
or auto on a door-to-door basis for trips in the approximate range of 
100 to 500 miles. A corridor is a natural grouping of metropolitan 
areas and markets that, by their proximity and configuration, lend 
themselves to efficient service by HSR. The U.S. Department of 
Transportation study that yielded these definitions, High-Speed Ground 
Transportation for America (1997, available at [https://www.fra.dot.gov/
us/content/515]), went on to suggest that HSR--once built--could 
potentially provide significant public benefits (congestion relief, 
emissions reductions, and petroleum savings) while supporting its 
continuing operations and future investment requirements from the 
farebox. Actual results would vary from one corridor to another, and 
would depend on a host of factors, including travel demand, fare 
policies, characteristics of competing modes, source of motive power, 
and operating practices and costs.
    Background on This Request for Expressions of Interest (RFEI): 
Section 502 of the Passenger Rail Investment and Improvement Act of 
2008 (``Section 502'') (Pub. L. 110-432, October 16, 2008), requires 
the Secretary of Transportation to ``issue a request for proposals for 
projects for the financing, design, construction, operation, and 
maintenance of a high-speed intercity passenger rail system operating 
within'' either the Northeast Corridor or a federally designated HSR 
corridor. Section 502 prescribes that Expressions of Interest received 
will be considered by the Secretary and possibly by commissions 
representing affected and involved governors, mayors, freight 
railroads, transit authorities, labor organizations, and Amtrak. The 
results of these reviews will be summarized in one or more reports to 
Congress, which will make recommendations for further action regarding 
no more than one project concept for each corridor. FRA envisions this 
as the first phase of a qualification process that Congress may follow 
with more specific actions regarding particular proposals in one or 
more corridors.
    Although authorized, no funds have been appropriated to support 
implementation of HSR under this program, and the availability of such 
funds in the future is not known. Respondents to this request 
acknowledge, by virtue of their response, that the likelihood of future 
funding and implementation of the projects covered by this notice is 
unknown, and that the Federal Government will not be liable for any 
costs incurred in the preparation of responses to this notice.
    Who May Respond: Responses to this RFEI are welcome from all 
sources. Section 502 calls for comprehensive proposals that will 
address all the tasks necessary to implement HSR. Potential proposers 
are advised to verify, before committing resources to responding to 
this RFEI, that they would be able to assemble a cohesive team that can 
plan, organize, finance, design, and construct a complete HSR system in 
an eligible corridor, as well as gain the support of the key public and 
private stakeholders, and successfully operate and maintain it on a 
long-term basis.
    Performance Standards for HSR Systems: Section 502 requires that 
the HSR proposals for which Expressions of Interest are requested meet 
certain travel time performance standards and meet any standards 
established by the Secretary. The required performance standards are:
    (A) Northeast Corridor between New York and Washington: Proposed 
express service must link Pennsylvania Station, New York, with Union 
Station, Washington, with a reliable travel time of two hours.
    (B) All other eligible corridors, including the Northeast Corridor 
between New York and Boston: Existing minimum intercity rail scheduled 
service trip times (as shown in Amtrak's published timetable in effect 
on October 16, 2008) between endpoints and all other main corridor 
city-pairs must be reduced by a minimum of 25 percent, and a reliable 
service provided. If no service presently exists in the corridor, the 
proposer will need to demonstrate that the proposed service will be 
reliable and time competitive in accordance with the definition of HSR 
above.
    Eligible Corridors: Responses to this notice must address HSR 
proposals located in part or all of one or more of the following 
corridors that connect and serve the key metropolitan areas listed 
(shown on the map at: https://www.fra.dot.gov/us/content/1272):
    (A) ``Northeast Corridor'' between Washington, DC; Baltimore, MD; 
Wilmington, DE; Philadelphia, PA; Trenton, NJ; New York, NY; New Haven, 
CT; Providence, RI; and Boston, MA. Separate service standards apply 
north and south of New York City; see Performance Standards for HSR 
Systems, above.
    (B) ``California Corridor'' connecting and between the San 
Francisco Bay Area, Sacramento, Los Angeles, and San Diego, CA;
    (C) ``Empire Corridor'' between New York City, Albany and Buffalo, 
NY, over the route of the former New York Central Railroad;
    (D) ``Pacific Northwest Corridor'' between Eugene and Portland, OR; 
Seattle, WA; and Vancouver, BC, Canada;
    (E) ``South Central Corridor'' along three branches between Dallas/
Fort Worth, TX, and:
    (1) Austin and San Antonio, TX;
    (2) Oklahoma City and Tulsa, OK; and
    (3) Texarkana and Little Rock, AR;
    (F) ``Gulf Coast Corridor'' along three branches between New 
Orleans, LA, and:
    (1) Birmingham, AL, and Atlanta, GA;
    (2) Houston, TX; and
    (3) Mobile, AL;
    (G) ``Chicago Hub Network'' along six routes between:
    (1) Chicago, IL; Milwaukee, WI; and Minneapolis-St. Paul, MN;
    (2) Chicago, IL, and Detroit, MI;
    (3) Chicago, IL, Toledo and Cleveland, OH;
    (4) Chicago, IL; Indianapolis, IN; and both Cincinnati, OH, and 
Louisville, KY;
    (5) Chicago, IL; St. Louis, MO; and Kansas City, MO; and
    (6) The transversal extension between Cleveland, Columbus, and 
Cincinnati, OH;

[[Page 76445]]

    (H) ``Florida Corridor'' between Miami, Orlando, and the Tampa Bay 
region, FL;
    (I) ``Keystone Corridor'' between Philadelphia, Harrisburg, and 
Pittsburgh, PA, over the route of the former Pennsylvania Railroad;
    (J) ``Northern New England Corridor'' along three branches between 
Boston, MA, and:
    (1) Portland/Lewiston-Auburn, ME;
    (2) Concord, NH; Montpelier, VT; Montreal, QE, Canada; and
    (3) Springfield, MA, and to both New Haven, CT, and Albany, NY; and
    (K) ``Southeast Corridor'' along three branches between:
    (1) Washington, DC; Richmond, VA; Raleigh, Greensboro and 
Charlotte, NC; Greenville, SC; and Atlanta, GA;
    (2) Raleigh, NC; Columbia, SC; Savannah, GA; Jacksonville, FL; and
    (3) Atlanta, Macon, and Jesup, GA, thence either or both Savannah, 
GA and Jacksonville FL.
    Required Contents of Expressions of Interest: Complete responses 
must contain the required contents, and will be evaluated by FRA to 
determine if they satisfy the selection criteria in Evaluation and 
Selection Process for Expressions of Interest below. The following 
minimum requirements may be satisfied through a narrative statement 
submitted by the applicant and supported by spreadsheet documents, 
tables, graphics, drawings, and/or other materials, as appropriate. 
Each Expression of Interest must:
    1. Designate a point of contact for the Expression of Interest and 
provide his or her name and contact information, including a telephone 
number, mailing address and e-mail address.
    2. Provide the name(s) and qualifications of the person(s) 
submitting the Expression of Interest, and the names and qualifications 
of the lead entity and each member/entity of the team proposed to 
finance, design, construct, operate, and maintain the railroad, 
railroad equipment, and related facilities, stations, and 
infrastructure. Describe how such entities would be related to the lead 
entity.
    3. Provide a short executive summary overview of the proposed 
project concept, including:
    a. Markets served, including a concept map;
    b. Station locations;
    c. Trip times for major markets indicating that program performance 
standards will be met;
    d. Peak and average operating speeds of the train service;
    e. Proposed routes and alignments, noting the extent of new rights-
of-way (ROW) and use of existing ROW, as well as a general discussion 
of how the intended reliability requirements will be achieved;
    f. Type of train equipment to be used, the maximum speed of that 
equipment, and any technologies used to meet trip time goals;
    g. Proposed organizational structure;
    h. Salient features of the intended operation as they may affect 
operating practices and unit costs;
    i. Total capital cost and expected contributions by Federal, state, 
and other public and private sources; and
    j. The benefits to the public and the national transportation 
system, including an explanation as to why the project is cost-
effective and what advantages it offers over existing services.
    4. Provide a detailed technical description of the project, 
including:
    a. Populations of markets served by each of the proposed stations;
    b. Existing intercity traffic (passengers, vehicle capacity, 
frequency) by mode;
    c. Proposed station locations and, for each, whether it is existing 
or new, and how it maximizes the use of existing infrastructure;
    d. How the project will facilitate convenient intermodal travel 
connections with other transportation services and systems;
    e. Trip time and fare comparisons among proposed services, existing 
rail services, if any, and competing modes for major city pairs;
    f. An operating plan with train service frequency, timetable, and 
information on intermodal connections;
    g. Annual ridership and revenue projections for 10 years with 
documentation of assumptions and methods and peaking characteristics;
    h. Operating costs with documentation of assumptions and methods;
    i. The impact of the project on highway and aviation congestion, 
energy consumption, pollutant emissions, land use and economic 
development;
    j. A description of how the design, construction, implementation, 
and operation of the project will accommodate and allow for future 
growth of existing and projected intercity, commuter, and freight rail 
service;
    k. The impact of the project on other intercity, commuter, and 
freight rail services;
    l. Proposed routes and alignments noting the extent of new ROW and 
use of existing ROW;
    m. Required infrastructure investments and improvements, including 
the feasibility of building new track and method for securing required 
ROW;
    n. How adverse impacts of the project would be mitigated;
    o. The type and quantity of train equipment to be used, with 
technical specifications, such as consist, maximum speed, passenger 
capacity, energy consumption profile, acceleration and deceleration 
rates;
    p. Project capital costs for major categories of expenditures 
(track structures, tunnels, bridges, vehicles, stations, maintenance 
equipment and facilities, communication and control systems, and power 
systems), with documentation of assumptions and methods;
    q. A detailed analysis of the methods and technologies for 
achieving the required reductions in trip times and the intended 
reliability standards; and
    r. Synopses and references for any past high-speed rail studies 
deemed relevant.
    5. Present a detailed financial plan for the proposed project, 
including:
    a. Projected annual operating revenues by year and sources;
    b. Estimates of annual operating costs by type of expenditure;
    c. Annual schedule of capital costs required both initially and in 
subsequent years to maintain a state-of-good-repair and to recapitalize 
as necessary to sustain the initially proposed level of service or 
higher levels of service;
    d. Sources and descriptions of capital funds, including terms, 
conditions and expectation for return on equity, and
    e. Credit assumptions including sources, guarantees, terms, 
maturity and special conditions;
    f. A description of the insurance program contemplated for 
construction and operation;
    g. A description of construction cost risk sharing and rationale 
for the proposed approach;
    h. A description of revenue and operating cost risk sharing and 
rationale for the proposed approach;
    i. Projected funding for the full fair market compensation for any 
asset, property right or interest, or service acquired from, owned, or 
held by a private person or Federal entity that would be acquired, 
impaired, or diminished in value as a result of a project, except as 
otherwise agreed to by the private person or entity; and
    j. A projected financial statement for the proposed organization 
showing annual revenues, costs, investments, and debt service from 
project inception through construction, testing, and the first 20 years 
of operation.

[[Page 76446]]

    6. Describe the institutional framework and address other 
institutional issues, including:
    a. A project structure organization chart showing the proposer team 
and all the relationships among the public and private entities 
involved in the proposed project, a description of the relationships 
among the entities responsible for the financing, design, construction, 
operation and maintenance of the proposed project (including their 
equity stakes), and the roles of other participants in the operational 
aspects of the project;
    b. Any new entities required and how they will be structured 
legally and financially;
    c. Integration of the proposed service with Amtrak, other HSR rail 
services, other intercity passenger systems, and local access/egress 
systems;
    d. The feasibility of gaining access to required ROW, the approach 
to track capacity including building new track, and any public and 
private agreements for facility access and the expected costs of each;
    e. Required governmental actions and approvals and the role of the 
state government(s) in implementing the proposal; and
    f. The relationship to state rail plans and programs or, if not 
already part of such plans or programs, a statement describing plans 
for integration into them.
    7. Identify legislative actions needed, if any, to facilitate all 
aspects of the proposed project, including:
    a. Required Federal, state and/or local legislation to authorize 
and create a sponsoring entity for the project, or to remove legal 
impediments to project implementation, or otherwise facilitate the 
project;
    b. Required public funding commitments, Federal, state and/or 
local;
    c. Any legislative action required to allow the project to benefit 
from government-sponsored credit assistance programs, such as the 
Railroad Rehabilitation and Improvement Financing program and the 
Transportation Infrastructure Finance and Innovation Act program; and
    8. Describe how the project will be implemented to comply with 
Federal, state and local laws, including but not limited to:
    a. Laws governing the rights and status of employees associated 
with the route and service, including those specified in section 24405 
of title 49 United States Code;
    b. Rail safety and security laws, orders, and regulations governing 
HSR operations, including, but not limited to, the railroad safety 
provisions in Part 49 of the Code of Federal Regulations and the 
requirements of the Rail Safety Improvement Act of 2008;
    c. Environmental laws and regulations and the status or any 
progress towards completion of required documentation or actions under 
the National Environmental Policy Act, the National Historic 
Preservation Act, section 4(f) of the DOT Act, or other applicable 
Federal or state environmental impact assessment laws; and
    d. The Americans With Disabilities Act.
    Optional Contents Requested for Inclusion in Submissions: In 
addition to the required contents, respondents are requested to 
provide, at their option, their perspectives on what type of 
contracting and financing strategies are most likely to facilitate 
successful HSR projects. FRA is particularly interested in perspectives 
that draw on prior experience with HSR projects. In responding to this 
request, Expressions of Interest should address the following:
    a. What type of contracting structure is likely to provide the most 
effective allocation of the risk and responsibility for each element of 
the project (design, construction, financing, operation and 
maintenance) between the private and public sectors?
    b. Should all of the project elements to be performed by the 
private sector be procured in a single procurement or separately (for 
example, separate procurements for civil works, the provision of 
systems and equipment, and long-term operations and maintenance of the 
system)?
    c. Should the project's financing rely on commercial ticket fares 
and other revenue generated directly by the facility to pay for all or 
any portion of the project's cost, and should the private partner 
assume the risk that these revenues will be sufficient to repay all or 
any portion of the project's financing?
    d. What role should public sector commitments play in financing the 
project or particular components of the project, and what type of 
public commitment would be most effective?
    e. What measures or commitments would be needed, including possible 
legislation, to provide and facilitate multi-year Federal commitments 
of any Federal financing needed for the project?
    f. What role should private equity play in financing the project or 
particular components of the project and how would terms and conditions 
affect public sector participation?
    g. Are there any key considerations that will encourage or dissuade 
private sector involvement in the financing, design, construction, and 
long-term operations and maintenance of HSR in the corridors identified 
above?
    h. Should the commissions required by Section 502 be organized and 
their work structured in the same way for all corridors, and what 
structures and models should be considered to guide the commissions?
    i. How would the proposal contribute to the development of a 
national HSR system?
    Format for Submissions: Each Expression of Interest shall be 
submitted according to the instructions in ADDRESSES above. At a 
minimum, two (2) hard copies and electronic format on optical media 
(except oversized engineering drawings and maps, which may be submitted 
solely in hard copy) shall be submitted. Responses may include maps or 
graphics when they would illustrate information more effectively than 
text.
    Text and graphic documents shall be submitted both as MS Word 
documents and Adobe PDF documents, in Times New Roman, 12 point font, 
with 1-inch margins. Spreadsheets containing financial information 
shall be submitted as Microsoft Excel (or compatible) documents and 
Adobe PDF documents.
    Each Expression of Interest should not exceed a maximum total of 75 
pages, excluding appendices. The following sections shall be included 
in any submission: Cover page, proposer name(s) and contact 
information, project overview, detailed technical description, detailed 
financial plan, institutional information, legislative actions, legal 
compliance issues, and appendices containing any spreadsheets, 
drawings, and tables. Optional content should be provided as an 
additional section not included in the page count. The executive 
summary project overview should not exceed two (2) pages in length.
    Evaluation and Selection Process for Expressions of Interest: FRA 
will review responses and make determinations within 60 days of the 
closing date, under Dates above. The Secretary will evaluate each 
Expression of Interest in a two-step process. First, it will be 
screened for its completeness in responding to this RFEI. Second, it 
will undergo substantive review according to the selection criteria 
outlined below.
    Selection Criteria: FRA will consider the extent to which each 
Expression of Interest satisfies the following selection factors: (1) 
The project detailed in the Expression of Interest demonstrates the 
ability to achieve the specified reduction in minimum intercity rail 
service trip times and the intended reliability standards. (2) The 
Expression

[[Page 76447]]

of Interest is complete and includes all the elements in the 
Requirements for Expressions of Interest section, above. (3) The 
project detailed in the Expression of Interest is sufficiently credible 
to warrant further consideration. (4) The project detailed in the 
Expression of Interest is likely to result in a positive impact on the 
Nation's transportation system. (5) The project detailed in the 
Expression of Interest is cost-effective. (6) The project detailed in 
the Expression of Interest is in the public interest.
    Step 1--Screening Process: Upon receipt of responses and after the 
close of the Expression of Interest solicitation, FRA will evaluate 
them and determine if each Expression of Interest is complete and if 
there is evidence provided in the response that would support 
conclusions, based on criteria 3 through 6 above. If FRA determines 
that one or more Expressions of Interest satisfy this screening 
evaluation, the Secretary would form a commission for each relevant 
corridor to review and consider the response(s).
    Step 2--Selection Process: Section 502 requires the Secretary to 
establish and support the formation of commissions, representing 
affected and involved governors, mayors, freight railroads, transit 
authorities, labor organizations, and Amtrak, that would assess the 
responses, and authorizes appropriation of necessary funds for this 
purpose. No funds have been appropriated for this purpose as of the 
date of this RFEI. The commission(s) would review the Expressions of 
Interest and prepare a report to the Secretary making recommendations 
for further consideration.
    Following receipt of each commission's evaluation and 
recommendations, the Secretary will consider the commission report(s) 
and select Expression(s) of Interest that (i) demonstrate a high 
likelihood of providing substantial benefits to the public and the 
national transportation system; (ii) are cost-effective, considering 
public commitments necessary for implementation and operation; and 
(iii) promise significant advantages over existing services operating 
in the same HSR corridor. The Secretary will then submit a report to 
Congress on all selected Expression(s) of Interest. Subject to 
appropriations and after submission of reports to Congress, up to 
$5,000,000.00 may be made available for preliminary engineering under 
49 U.S.C. Section 26104(a) for one selected proposal per corridor.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of FRA's dockets by the name of the 
individual submitting the comment (or signing the comment, if submitted 
on behalf of a State, association, business, or labor union). You may 
review DOT's complete Privacy Act Statement in the Federal Register 
published on April 11, 2000 (65 FR 19477-78), or you may visit https://
DocketsInfo.dot.gov.
    Freedom of Information Act Applicability: Documents submitted to 
the agency pursuant to this notice become agency records subject to the 
public access provisions of the Freedom of Information Act (FOIA) (5 
U.S.C. 552). FOIA generally provides that any person has a right, 
enforceable in court, to obtain access to Federal agency records, 
except to the extent that such records (or portions of them) are 
protected from public disclosure by one of nine exemptions or by one of 
three special law enforcement record exclusions. The Department of 
Transportation's regulations implementing the FOIA are found at 49 CFR 
Part 7. See the discussion later in this notice about the treatment of 
trade secrets and commercial or financial information obtained from a 
person that is privileged or confidential.
    Requests for Confidential Treatment: FRA recognizes that 
Expressions of Interest submitted to the agency pursuant to this notice 
may contain certain information that is or should be exempt from public 
release, principally because the information constitutes trade secrets 
or commercial or financial information obtained from a person that is 
privileged or confidential as provided for in Freedom of Information 
Act exemption 4 (5 U.S.C. 552(b)(4)). The term ``trade secret'' has 
been fairly narrowly defined as a ``secret, commercially valuable plan, 
formula, process, or device that is used for the making, preparing, 
compounding, or processing of trade commodities and that can be said to 
be the end product of either innovation or substantial effort. Public 
Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288 (DC Cir. 
1983). FRA expects that there should be very limited, if any, need to 
submit trade secret information in connection with this notice. 
Commercial or financial information obtained from a person that is 
privileged or confidential and thus exempt from release under FOIA 
exemption typically involves information the release of which is likely 
to cause substantial harm to the competitive position of the person 
from whom the information was obtained. National Parks & Conservation 
Association v. Morton, 498 F.2d 765, 770 (DC Cir. 1974). This is a 
fairly restrictive standard and should serve to limit the volume of 
exempt material that might be submitted.
    FRA also recognizes that the nature of the process established 
through section 502 of the Passenger Rail Investment and Improvement 
Act of 2008, with the potential involvement of a multi-member 
commission that could be charged with reviewing proposals submitted 
pursuant to this notice, could present significant challenges in 
managing any confidential information that is submitted. Thus, 
submitters are encouraged to carefully review the applicable standards 
governing what constitutes trade secrets or confidential commercial or 
financial information and to limit the submission of such information 
to that specifically needed to respond to this notice.
    A request for confidential treatment with respect to a document or 
portion thereof may be made in accordance with instructions in 
ADDRESSES above on the basis that the information is--(1) Exempt from 
the mandatory disclosure requirements of the Freedom of Information Act 
(5 U.S.C. 552); (2) Required to be held in confidence by 18 U.S.C. 
1905; or (3) Otherwise exempt by law from public disclosure. Any 
document containing information for which confidential treatment is 
requested shall be accompanied at the time of filing by a detailed 
statement justifying non-disclosure and referring to the specific legal 
authority claimed. Any document containing any information for which 
confidential treatment is requested shall be marked ``CONFIDENTIAL'' or 
``CONTAINS CONFIDENTIAL INFORMATION'' in bold letters. If 
confidentiality is requested as to the entire document, or if it is 
claimed that non-confidential information in the document is not 
reasonably segregable from confidential information, the accompanying 
statement of justification shall so indicate and support with specific 
legal authority. If confidentiality is requested as to a portion of the 
document, then the person filing the document shall file, together with 
the document, a second copy of the document from which the information 
for which confidential treatment is requested has been deleted. If the 
person filing a document, of which only a portion is requested to be 
held in confidence, does not submit a second copy of the document with 
the confidential information deleted, FRA may assume that there is no 
objection to public disclosure of the document in its entirety. FRA 
retains the right to make its own determination with regard to any 
claim of confidentiality. Notice of a decision by the FRA to deny a 
claim, in whole or in part, and an opportunity to

[[Page 76448]]

respond shall be given to a person claiming confidentiality of 
information no less than five days prior to its public disclosure. FRA 
intends to address protection of confidential information by any 
commission(s) formed to review submitted proposals through the 
commission formation process. Submitters are welcome to offer 
suggestions for managing confidential data along with their proposals.

    Issued in Washington, DC, on December 11, 2008.
Mark E. Yachmetz,
Associate Administrator for Railroad Development.
[FR Doc. E8-29795 Filed 12-15-08; 8:45 am]
BILLING CODE 4910-06-P