High-Speed Intercity Passenger Rail (HSIPR) Program, 16564-16574 [2010-7336]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 75, Number 62 (Thursday, April 1, 2010)]
[Notices]
[Pages 16564-16574]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-7336]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration


High-Speed Intercity Passenger Rail (HSIPR) Program

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

ACTION: Notice of funding availability.

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SUMMARY: On January 28, 2010, President Obama announced the first 
selections for the High-Speed Intercity Passenger Rail (HSIPR) Program. 
This notice builds on the program framework established by FRA in the 
June 23, 2009 interim program guidance (74 FR 29900), and details the 
application requirements and procedures for obtaining funding for high-
speed rail planning activities under the Department of Transportation 
Appropriations Act of 2010 (FY 2010 DOT Appropriations Act). This 
solicitation is only applicable to the planning funds available under 
the FY 2010 appropriation; a future solicitation will be released in 
the coming months for the stand-alone project and corridor program 
funds under the FY 2010 appropriation. FRA has also concurrently issued 
a separate solicitation for projects to be funded with funds available 
under the Department of Transportation Appropriations Act of 2009 that 
have not yet been allocated to projects. This solicitation is also 
published in today's edition of the Federal Register.

DATES: Applications for funding under this solicitation are due no 
later than 5 p.m. EST, May 19, 2010 and must be submitted via 
Grants.gov (see instructions in Section 3.1). See Section 3 for 
additional information regarding the application process. FRA reserves 
the right to modify this deadline.
    Supporting materials that cannot be submitted electronically may be 
mailed or hand delivered to: U.S. Department of Transportation, Federal 
Railroad Administration, 1200 New Jersey Avenue, SE., MS-20, Room W38-
302, Washington, DC 20590, Att'n: HSIPR Program. Applicants are 
encouraged to use special courier services to avoid shipping delays. 
Application forms are available at https://www.fra.dot.gov/Pages/2243.shmtl.

FOR FURTHER INFORMATION CONTACT: For further information regarding this 
notice and the grants program, please contact the FRA HSIPR Program 
Manager via e-mail at HSIPR@dot.gov, or by mail: U.S. Department of 
Transportation, Federal Railroad Administration, 1200 New Jersey 
Avenue, SE., MS-20, Washington, DC 20590, Att'n: HSIPR Program.

Table of Contents

1. Financial Assistance Description
2. Eligibility Information
3. Application and Submission Information
4. Application Review Information
5. Award Administration Information
6. Questions and Clarifications
Appendix 1: Additional Information on Eligibility
Appendix 2: Additional Information on Award Administrations and 
Grant Conditions
Appendix 3: Additional Information on Applicant Budgets

Section 1: Financial Assistance Description

1.1 Authority

    This financial assistance announcement pertains to the funding made 
available for planning activities under FRA's High-Speed Intercity 
Passenger Rail (HSIPR) Program.
    The authority for these planning funds is contained in two pieces 
of legislation:
     The Passenger Rail Investment and Improvement Act of 2008, 
under Sections 301, 302, and 501--Intercity Passenger Rail Service 
Corridor Capital Assistance (codified at 49 U.S.C. chapter 244); and
     The Fiscal Year (FY) 2010 Consolidated Appropriations Act 
(``FY 2010 DOT Appropriations Act,'' Title I of Division A of Pub. L. 
111-117, December 16, 2009), under the title ``Capital Assistance for 
High Speed Rail Corridors and Intercity Passenger Rail Service.''
    This document incorporates interim guidance required for this 
financial assistance opportunity pursuant to the FY 2010 DOT 
Appropriations Act and 49 U.S.C. 24402(a)(2). The funding made 
available under this financial assistance announcement was appropriated 
under the FY 2010 DOT Appropriations Act. The funding opportunities 
described in this guidance are available under Catalog of Federal 
Domestic Assistance (CFDA) number 20.319.

1.2 Program Description and Legislative History

    As one of President Obama's foremost transportation priorities, the 
HSIPR Program is intended to help address the nation's transportation 
challenges by investing in an efficient network of high-speed and 
intercity passenger rail corridors that connect communities across 
America. On January 28, 2010, President Obama announced the first 
recipients selected to receive funding under the HSIPR Program. These 
initial awards were funded from the $8 billion appropriated under the 
American Recovery and Reinvestment Act of 2009 (ARRA or Recovery Act) 
and $90 million appropriated under the FY 2009 DOT Appropriations Act. 
Within the $90 million of FY 2009 funding, approximately $9 million 
worth of planning projects were selected.
    Congress established the framework for the HSIPR Program through 
the passage of the Passenger Rail Investment and Improvement Act of 
2008 (PRIIA). Enacted in October 2008, PRIIA represents the most 
sweeping Congressional action on intercity

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passenger rail since those that created the National Railroad Passenger 
Corporation (Amtrak) and the Northeast Corridor Improvement Project 
during the 1970s. In addition to reauthorizing Amtrak, PRIIA 
established three new competitive grant programs for funding high-speed 
intercity passenger rail capital improvements, each of which, as 
authorized, requires a 20 percent non-Federal match:
     Intercity Passenger Rail Service Corridor Capital 
Assistance (Section 301)--Under this section, the broadest of PRIIA's 
three funding programs, States (including the District of Columbia), 
groups of States, interstate compacts, and public Intercity Passenger 
Rail agencies established by one or more State(s) may apply for grants 
for capital improvements to benefit all types of intercity passenger 
rail service, including high-speed service. Amtrak may participate 
through a cooperative agreement with a State(s).
     High-Speed Rail Corridor Development (Section 501)--
Although similar in structure, criteria, and conditions to Section 301, 
eligibility for this program is restricted to projects intended to 
develop Federally-designated high-speed rail corridors for intercity 
passenger rail services that may reasonably be expected to reach speeds 
of at least 110 miles per hour (mph). Applicant eligibility under 
Section 501 is broadened from Section 301 to include Amtrak.
     Congestion Grants (Section 302)--This program authorizes 
grants to States or to Amtrak (in cooperation with States) for 
facilities, infrastructure, and equipment for high-priority rail 
corridor projects to reduce congestion or facilitate intercity 
passenger rail ridership growth.
    In the FY 2010 DOT Appropriations Act, Congress built upon the 
``jump start'' in funding for high-speed and intercity passenger rail 
development provided through the ARRA by appropriating an additional 
$2.5 billion for the grant activities authorized under Sections 301, 
302, and 501 of PRIIA. However, unlike the special exceptions made in 
ARRA, applicants will now be required to provide at least the 20 
percent non-Federal match mandated in PRIIA. Additionally, Congress 
stipulated that up to $50 million of the funds provided can be used for 
planning activities.

1.3 Funding Approach

    The FY 2010 DOT Appropriations Act appropriated a total of $2.5 
billion for high-speed and intercity passenger rail grants; 
additionally, approximately $65 million remains from the FY 2009 DOT 
Appropriations Act. FRA is separately soliciting applications for the 
different components of these appropriations:
    1. FY 2010 planning funds (up to $50 million): Planning projects 
with a 20 percent non-Federal match. This solicitation is for these 
funds. (The appropriation permits the Secretary to retain a portion of 
these funds for Federally-led multi-State planning projects. See 
Section 1.4 for more details.)
    2. FY 2010 stand-alone projects (up to $245 million) and corridor 
programs (at least $2,125 million): Stand-alone final design/
construction and/or preliminary engineering/NEPA projects and corridor 
program funding with a 20 percent non-Federal match. The solicitation 
for these funds is forthcoming.
    3. Residual FY 2009 funds (approximately $65 million): Construction 
projects with a 50 percent non-Federal match. The notice of funding 
availability (NOFA) for these funds is being issued concurrently with 
this solicitation.

1.4 General Award Information

    Of the $2.5 billion appropriated by Congress, up to $50 million is 
available for planning activities. These planning grants are authorized 
under Sections 301, 302, and 501 of PRIIA.
    Planning grants are aimed at helping to establish a pipeline of 
future HSIPR construction projects and corridor development programs by 
advancing planning activities for corridors that are at an earlier 
stage of the development process. The grants can also be used for 
completion of State rail plans. These planning activities provide 
States with an opportunity to complete the prerequisite work needed to 
submit applications for future construction grant solicitations.
    The FY 2010 DOT Appropriations Act also permits the Secretary of 
Transportation to retain a portion of planning funding to facilitate 
the preparation of planning documents for high-speed rail corridors 
that cross multiple States. Groups of States interested in advancing 
ideas for a U.S. DOT-led multi-State planning ``demonstration'' effort 
should submit proposals according to a separate and concurrently-issued 
notification also included in today's Federal Register.
    FRA will make awards for (1) ``passenger rail corridor investment 
plans'' that lead directly to completion of both service development 
plans (SDPs) and corridor-wide environmental documents, and (2) State 
rail plans (see Section 2.4). The awards will be issued through 
cooperative agreements. Cooperative agreements allow for greater 
Federal involvement in carrying out the agreed upon investment. The 
substantial Federal involvement for high-speed intercity passenger rail 
planning activities will include agreement on the scope of study, 
review of draft studies, and acceptance of final deliverables.
    While there are no predetermined minimum or maximum dollar 
thresholds for awards, FRA anticipates making multiple awards from the 
$50 million available for planning. As such, FRA expects applicants to 
tailor their applications and proposed project scopes accordingly.

Section 2: Eligibility Information

    Applications for planning activities will be required to meet 
minimum requirements related to applicant eligibility, project 
eligibility, and the fulfillment of other prerequisites.
    To the extent that an application's substance exceeds the minimum 
eligibility requirements described below, such qualifications will be 
considered in evaluating the merits of an application.

2.1 Eligible Applicant Types

    An entity seeking assistance for planning activities must meet the 
definition of an ``applicant'' under Sections 301, 302 and 501 of 
PRIIA. See Appendix 1.1 for more details about applicant eligibility.
    Eligible applicant entities are as follows:
     States (including the District of Columbia);
     Groups of States (Sections 301 and 501);
     Interstate Compacts (Sections 301 and 501);
     Public agencies established by one or more States and 
having responsibility for providing intercity passenger rail service 
(Section 301) or high-speed passenger rail service (Section 501);
     Amtrak (Section 501); and
     Amtrak, in cooperation with States (Sections 301 and 501).

2.2 Applicant and Key Partner Qualifications

    For an application submitted by an eligible entity to be considered 
for planning funding, it must affirmatively demonstrate that the 
applicant has or will have the legal, financial, and technical capacity 
to carry out its proposed project. To demonstrate these capacities, the 
applicant is required to address the following qualifications:
     For an entity other than a State, its legal authority to 
undertake the proposed project and apply for and expend Federal 
financial assistance;

[[Page 16566]]

     The applicant's ability to provide matching funds and to 
absorb potential cost overruns or financial shortfalls. For entities 
other than States, the demonstration of such ability should include a 
description of the entity's own financial resources, its ability to 
raise revenue through taxation, dedicated funding sources, or other 
means, and/or explicit financial backing by one or more State 
governments;
     The applicant's experience in effectively administering 
grants of similar scope and value (including timely completion of grant 
deliverables, compliance with grant conditions, and quality and cost 
controls); and
     The applicant's experience in managing railroad planning 
projects of a nature similar to that for which funding is being 
requested.

2.3 Cost Sharing and Matching

2.3.1 Treatment of Applicant Cost Sharing
    Pursuant to the provisions of the FY 2010 DOT Appropriations Act 
and Sections 301, 302, and 501 of PRIIA, the Federal share of the costs 
of projects funded through cooperative agreements under this 
solicitation may not exceed 80 percent.
    If an applicant chooses the option of contributing, from its own or 
its partner project stakeholders' resources, more than the required 20 
percent non-Federal share of the costs of its proposed project, such 
additional contributions will be considered in evaluating the merit of 
its application (see Section 4 for a complete description of evaluation 
and selection criteria).
2.3.2 Requirements for Applicant Cost Sharing
    An applicant's contribution toward the cost of its proposed project 
may be in the form of cash or, with FRA approval, in-kind contributions 
of services or supplies. As part of its application, an applicant 
offering an in-kind contribution must provide a documented estimate of 
the monetary value of any such contribution, and its eligibility under 
49 CFR 18.24 or 19.23.
    The applicant must provide as part of its application documentation 
that demonstrates that it has committed and will be able to fulfill any 
pledged contribution, including committing any required financial 
resources that are budgeted or planned at the time the application is 
submitted. Furthermore, funds from other Federal financial assistance 
programs may not be used to satisfy the 20 percent match requirement.
    All applicants will be required to demonstrate the ability to 
absorb any cost overruns and deliver the proposed project with no 
Federal funding or financial assistance beyond that provided in the 
cooperative agreement.

2.4 Eligible Projects

    There are two types of eligible planning projects: (1) Those that 
lead directly to ``passenger rail corridor investment plans'' (which 
include both service development plans and corridor-wide environmental 
documentation); and (2) those that lead directly to a State rail plan.
2.4.1 Passenger Rail Corridor Investment Plans
    Passenger rail corridor investment plans include both a service 
development plan (SDP) and corridor-wide environmental documentation. 
Groups of States submitting proposals should identify whether they are 
proposing that FRA lead the development of both documents, a stand-
alone SDP, or corridor-wide environmental document.
    Applicants seeking planning funds to develop a passenger rail 
corridor investment plan must apply for any necessary work to develop 
both a service development plan and corridor-wide environmental 
documentation. If the applicant has already completed one of these 
documents or a component thereof, FRA must have accepted that document 
as meeting the minimum requirements outlined herein in order for the 
applicant to receive a grant to complete the remaining component(s).
2.4.1.1 Service Development Plan
    Service Development Plans (SDPs) should support future corridor 
development. SDPs funded through this solicitation must include the 
following elements:
     Corridor Development Program Rationale--Description of the 
corridor's transportation challenges and opportunities, based on 
current and forecasted travel demand and capacity conditions, 
demonstrating how the proposed project/program would cost-effectively 
address transportation and other needs. Development of the program 
rationale should consider multimodal system alternatives (highway, air, 
other, as applicable), including a qualitative and quantitative 
assessments of the costs, benefits and impacts and risks of the 
alternatives. Program rationale may also explore synergies between the 
proposed service and large-scale goals and development plans within its 
service region and communities.
     Service Plan--Detail on the train service alternatives to 
be provided for each phase of new or improved HSIPR service, including: 
the service frequency, timetable (including time-distance 
``stringline'' diagrams), general station locations, intermodal 
connections, and train consists. The Service Plan will rely on or 
include operational analyses, including, where appropriate, railroad 
operation simulations and equipment and crew scheduling analyses, which 
in turn reflect such variables as travel demand and rolling stock 
configuration. The planning horizon should be consistent with the 
anticipated useful lives of the improvements to be introduced. If the 
proposed service makes use of facilities that would be shared with 
freight, commuter rail, or other intercity passenger rail services, the 
planning study should consider the existing and future characteristics 
of those services, as developed cooperatively with freight, commuter, 
and intercity passenger rail partners.
     Capital Investment Needs Assessment--Identification of 
infrastructure, rolling stock and facilities improvements for each 
discrete phase of new or improved service implementation, including any 
sequence or prioritization. The plan will include cost estimates for 
specific capital investments needed to achieve and sustain the service 
plan.
     Financial Forecast--Operating financial projections for 
each phase of the planned service, with documentation of the methods, 
assumptions and outputs of the following: travel demand forecasts, 
projected revenue, and operating expenses, including maintenance of 
way, maintenance of equipment, transportation (train movement), 
passenger traffic and services (marketing, ticketing, station, and on-
board services), and general/administrative expenses. Cost-sharing 
arrangements with infrastructure owners and rail operators should also 
be included.
     Public Benefits Assessment--Description of user and non-
user benefits and, to the extent readily quantifiable, the estimated 
economic value of those benefits, with particular attention to job 
creation and retention, ``green'' environmental outcomes, potential 
energy savings, and effects on community livability.
     Program Management Approach--A phased program 
implementation strategy including a preliminary description of the 
intended techniques of project management that will assure quality, 
cost, and budget control; and the financing and organizational plans 
for carrying out the proposed strategy.

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2.4.1.2 Corridor-Wide Environmental Documents
    Eligible planning projects include those that lead directly to 
completion of NEPA and related environmental documentation for corridor 
programs. Environmental documentation funded through this solicitation 
must satisfy Service NEPA requirements. FRA has defined Service NEPA as 
at least a programmatic/Tier 1 environmental review (using tiered 
reviews and documents), or a project environmental review, that also 
addresses broader questions and likely environmental effects for the 
entire corridor relating to the type of service(s) being proposed, 
including cities and stations served, route alternatives, service 
levels, types of operations (speed, electric, or diesel powered), 
ridership projections, and major infrastructure components. Simple 
corridor programs are often best addressed with project NEPA 
documentation, while more complex corridor programs may need a tiering 
approach. FRA is responsible for establishing the scope of the 
environmental review, including the use of tiering or use of project 
NEPA documentation.
2.4.2 State Rail Plans
    Eligible planning projects include those that result in completion 
of State rail plans. The contents of State rail plans funded through 
this solicitation must satisfy Chapter 227 of Title 49 and include the 
following:
     The State's goals for a multimodal system, the role of 
rail within that system, and current freight and passenger rail 
activities.
     A description of the existing freight and passenger 
system, current operating objectives for freight and passenger rail, 
and the system performance.
     A discussion of the institutional structure of the rail 
program, ongoing safety and security programs, and a general analysis 
of the economic and environmental impacts of rail within the State.
     A summary of all passenger and freight rail proposals 
under consideration in the State for commuter and intercity markets, 
their capital costs, timing, phasing and funding, public and private 
benefits, supporting studies and reports, and how they would address 
rail system deficiencies.
     A description of the vision for rail transportation in the 
State, how it relates to the national rail plan (if available in its 
final form by the time of the planning activities) and regional plans, 
and how it would be carried out through rail agencies, supporting 
legislation, and any new rail programs within the State.
     A 5-year and 20-year rail service and investment program 
and a discussion of their effects on State transportation, rail 
capacity and congestion, other modes, safety and congestion, energy and 
greenhouse gas emissions, environmental, economic and employment 
conditions, and the distribution of benefits to communities in terms of 
livability.
     Specific information for the passenger element of the 
service and investment program including: Financing plan, service 
development plan, and 5 and 20-year public and private benefits.
     Specific information for the freight element of the 
service and investment program, including: Financing plan and 5 and 20-
year public private benefits.
     A description of public, agency, and interested party 
participation in the plan development, how their recommendations were 
addressed in process, and how rail planning is coordinated with other 
State transportation planning and programs, including Section 135 of 
Title 23.

2.5 Project Completion

    FRA encourages all planning projects to be completed within 1 to 2 
years of obligation.

2.6 Eligibility Restrictions

    Pursuant to the provisions of the FY 2010 DOT Appropriations Act 
and Sections 301, 302, and 501 of PRIIA, planning activities outlined 
below are ineligible to receive funding:
     Applications for planning activities submitted by private 
entities other than Amtrak;
     Projects for which commuter rail passenger transportation 
is the primary intended beneficiary; and
     For any expenses associated with passenger rail operating 
costs.
    Additional funding use restrictions are fully described in Section 
3.4.3 of this notice.

Section 3: Application and Submission Information

3.1 Applying Online

    Applications for these funds will be submitted through Grants.gov 
by 5 p.m. EST on May 19, 2010. Program-specific application forms 
(identified in Section 3.3 below) may be downloaded from FRA's Web site 
at https://www.fra.dot.gov/Pages/2243.shmtl.
    To apply for funding through Grants.gov, applicants must be 
properly registered. Complete instructions on how to register and 
submit an application can be found at Grants.gov. If you experience 
difficulties at any point during this process, please call the 
Grants.gov Customer Support Hotline at 1-800-518-4726, Monday-Friday 
from 7 a.m. to 9 p.m. EST.
    Registering with Grants.gov is a one-time process; however, 
processing delays may occur and it can take up to several weeks for 
first-time registrants to receive confirmation and a user password. It 
is highly recommended that applicants start the registration process as 
early as possible to prevent delays that may preclude submitting an 
application package by the application deadline specified. Applications 
will not be accepted after the due date; delayed registration is not an 
acceptable reason for extensions. In order to apply for funding under 
this announcement and to apply for funding through Grants.gov, all 
applicants are required to complete the following.
    1. Acquire a DUNS Number. A Data Universal Numbering System (DUNS) 
number is required for Grants.gov registration. The Office of 
Management and Budget requires that all businesses and nonprofit 
applicants for Federal funds include a DUNS number in their 
applications for a new award or renewal of an existing award. A DUNS 
number is a unique nine-digit sequence recognized as the universal 
standard for identifying and keeping track of entities receiving 
Federal funds. The identifier is used for tracking purposes and to 
validate address and point of contact information for Federal 
assistance applicants, recipients, and subrecipients. The DUNS number 
will be used throughout the grant life cycle. Obtaining a DUNS number 
is a free, one-time activity. Obtain a DUNS number by calling 1-866-
705-5711 or by applying online at https://www.dunandbradstreet.com.
    2. Acquire or Renew Registration with the Central Contractor 
Registration (CCR) Database. All applicants for Federal financial 
assistance maintain current registrations in the Central Contractor 
Registration (CCR) database. An applicant must be registered in the CCR 
to successfully register in Grants.gov. The CCR database is the 
repository for standard information about Federal financial assistance 
applicants, recipients, and subrecipients. Organizations that have 
previously submitted applications via Grants.gov are already registered 
with CCR, as it is a requirement for Grants.gov registration. Please 
note, however, that applicants must update or renew their CCR 
registration at least once per year to maintain an active status, so it 
is critical to check

[[Page 16568]]

registration status well in advance of the application deadline. 
Information about CCR registration procedures can be accessed at https://www.ccr.gov.
    3. Acquire an Authorized Organization Representative (AOR) and a 
Grants.gov Username and Password. Complete your AOR profile on 
Grants.gov and create your username and password. You will need to use 
your organization's DUNS number to complete this step. For more 
information about the registration process, go to https://www.grants.gov/applicants/get_registered.jsp.
    4. Acquire Authorization for your AOR from the E-Business Point of 
Contact (E-Biz POC). The E-Biz POC at your organization must log in to 
Grants.gov to confirm you as an AOR. Please note that there can be more 
than one AOR for your organization.
    5. Search for the Funding Opportunity on Grants.gov. Please use the 
following identifying information when searching for the funding 
opportunity on Grants.gov. The Catalog of Federal Domestic Assistance 
(CFDA) number for this solicitation is 20.319 titled ``High-
Speed Rail Corridors and Intercity Passenger Rail Service--Capital 
Assistance Grants.''
    6. Submit an Application Addressing All of the Requirements 
Outlined in this Funding Availability Announcement. Within 24 to 48 
hours after submitting your electronic application, you should receive 
an e-mail validation message from Grants.gov. The validation message 
will tell you whether the application has been received and validated 
or rejected, with an explanation. You are urged to submit your 
application at least 72 hours prior to the due date of the application 
to allow time to receive the validation message and to correct any 
problems that may have caused a rejection notification.

    Note: When uploading attachments please use generally accepted 
formats such as .pdf, .doc, .docx, .xls, .xlsx and .ppt. While you 
may imbed picture files such as .jpg, .gif, and .bmp, in your 
document files, please do not submit attachments in these formats. 
Additionally, the following formats will not be accepted: .com, 
.bat, .exe, .vbs, .cfg, .dat, .db, .dbf, .dll, .ini, .log, .ora, 
.sys, and .zip.

Experiencing Unforeseen Grants.gov Technical Issues

    If you experience unforeseen Grants.gov technical issues beyond 
your control that prevent you from submitting your application by the 
deadline, you must contact FRA staff at HSIPR@dot.gov within 24 hours 
after the deadline and request approval to submit your application. At 
that time, FRA staff will require you to e-mail the complete grant 
application, your DUNS number, and provide a Grants.gov Help Desk 
tracking number(s). After FRA staff review all of the information 
submitted, as well as contact the Grants.gov Help Desk to validate the 
technical issues you reported, FRA staff will contact you to either 
approve or deny your request to submit a late application. If the 
technical issues you reported cannot be validated, your application 
will be rejected as untimely.
    To ensure a fair competition for limited discretionary funds, the 
following conditions are not valid reasons to permit late submissions: 
(1) Failure to complete the registration process before the deadline 
date; (2) failure to follow Grants.gov instructions on how to register 
and apply as posted on its Web site; (3) failure to follow all of the 
instructions in the funding availability notice; and (4) technical 
issues experienced with the applicant's computer or information 
technology (IT) environment.

3.2 Address To Request/Submit Application Package

    If Internet access is unavailable, please write to FRA at the 
following address to request a paper application: U.S. Department of 
Transportation, Federal Railroad Administration, Attn. HSIPR Program 
Information (RDV-10), Mail Stop 20, 1200 New Jersey Ave., SE., 
Washington, DC 20590.
    For optional supporting documentation (described in Section 3.3.1) 
that an applicant is unable to submit electronically (such as oversized 
engineering drawings), applicants may submit an original and two copies 
to the above address. However, due to delays caused by enhanced 
screening of mail delivered via the U.S. Postal Service, applicants are 
advised to use other means of conveyance (such as courier service) to 
assure timely receipt of materials.

3.3 Content of Application

3.3.1 Application Package Components
    The application package for HSIPR Program planning applications 
contains three required components:
    1. HSIPR Planning Application Form.
    2. OMB Standard Application Forms.
    3. FRA's Assurances Document.
    Applicants must complete all three required components of the 
application package; failure to do so may result in the application 
being removed from consideration for award. All three components of the 
application package must be submitted through Grants.gov.
    Applicants may also submit additional documentation to support the 
merits of their applications. Inclusion of such supporting 
documentation is optional.
3.3.1.1 HSIPR Planning Application Form
    The most significant component of the application package is the 
HSIPR Planning Application Form, into which the applicant enters 
specific information about the proposed project. The form includes 
fields that have been developed by FRA to capture pertinent qualitative 
and quantitative program-specific information that is needed for FRA to 
confirm applicant and project eligibility, as well as information 
needed for evaluation and selection of applications. The HSIPR Planning 
Application Form requests three types of information:
    1. General applicant and project information.
    2. Narratives that allow the applicant to make arguments on the 
benefits of its proposed planning activities and other factors that are 
used to evaluate the merits of the application (See Section 4.2 and 4.3 
for a summary of evaluation and selection criteria).
    3. A Statement of Work (SOW)--scope, schedule and budget--that 
provides a description of the work that will be completed under the 
cooperative agreement, including the planning objectives, deliverables, 
milestones, project management information, and a budget broken down by 
deliverables and milestones that includes the assumptions used to 
develop the estimates. Pursuant to 49 U.S.C. 24402(g), FRA reserves the 
right to request changes to project scopes, schedules, and budgets of 
selected projects. See Appendix 3 for more information on preparing 
project budgets.
    The HSIPR Planning Application Form is available from FRA's Web 
site at: https://www.fra.dot.gov/Pages/2243.shtml. Applicants should 
download and complete the form and submit as an attachment in 
Grants.gov.
    In support of any information provided in the Application Form, FRA 
welcomes the submission of any other available supporting documentation 
that may have been developed by the applicant. The format and structure 
of any additional supporting documents is at the discretion of the 
applicant. Optional supporting documentation may be provided one of two 
ways--(1) as attachments to the application, or (2) in hard copy for 
materials that cannot otherwise be provided electronically. Applicants 
should provide notifications of any documentation being submitted in 
hard copy in the appropriate section

[[Page 16569]]

of the HSIPR Program Application Form.
    Optional supporting documentation could include items such as maps, 
preliminary engineering documents, environmental work, implementation 
plans, stakeholder agreements, or financial plans.
3.3.1.2 OMB Standard Application Forms
    The Standard Forms are developed by OMB and are required of all 
grant applicants. These forms should be submitted electronically 
through Grants.gov.
     Standard Form 424, Application for Federal Assistance.
     Standard Form 424A, Budget Information--Non-Construction 
Programs.
     Standard Form 424B, Assurances--Non-Construction Programs.
3.3.1.3 FRA Assurances Document
    FRA's assurances document contains standard Department 
certifications on grantee suspension and debarment, drug-free workplace 
requirements, and Federal lobbying. The FRA assurances document can be 
obtained from FRA's Web site at https://www.fra.dot.gov/downloads/admin/assurancesandcertifications.pdf. The document should be signed by an 
authorized certifying official for the applicant, scanned into 
electronic format, and submitted as an attachment to the application in 
Grants.gov.
3.3.1.4 Other Required Documentation
    For any other documentation required prior to award that is not 
specified in this notice, FRA will make individual arrangements with 
applicants for the submission of the required documentation.

3.4 Additional Application Information

3.4.1 Submission Dates and Times
    Complete applications must be submitted to Grants.gov (as specified 
in Section 3.1) no later than 5 p.m. EST, May 19, 2010. Grants.gov will 
send the applicant an automated e-mail confirming receipt of the 
application. Supporting documentation that cannot be submitted 
electronically may be sent by courier service with a waybill receipt 
stamped no later than 5 p.m. EST, May 19, 2010. FRA will e-mail the 
applicant to confirm receipt of supporting documentation sent by 
courier service.
    Subject to demonstration of unanticipated extenuating 
circumstances, FRA may consider application materials submitted after 
the deadlines prescribed above.
    FRA reserves the right to contact applicants with any concerns, 
questions, or comments related to applications.
3.4.2 Intergovernmental Review
    This program has not been designated as subject to Executive Order 
12372, pursuant to 49 CFR part 17.
3.4.3 Funding Restrictions
    In general, only those costs considered allowable pursuant to OMB 
Circular A-87, ``Cost Principles for State, Local, and Indian Tribal 
Governments'' (codified at 2 CFR part 225) will be considered for 
funding. Additionally, the following funding restrictions will apply to 
cooperative agreements awarded for planning activities, and must be 
taken into consideration in the development of budget information 
submitted as part of applications.
     Funding may not be used to fund expenses associated with 
the operation of intercity passenger rail service;
     Funding may not be used for first-dollar liability costs 
for insurance related to the provision of intercity passenger rail 
service;
     While there is no cap on grant recipient's use of grant 
funds for management and administrative costs, such costs must be 
allowable, reasonable, allocable, and in accordance with applicable OMB 
cost principles cited above.
    FRA will also consider reimbursement of pre-award costs incurred as 
early as the enactment of the FY 2010 DOT Appropriations Act (December 
16, 2009). However, such costs will be considered for reimbursement 
only to the extent that they are otherwise allowable under the 
applicable cost principles.

Section 4: Application Review Information

4.1 Application Review Process

    Complete applications are due by 5 p.m. EST, May 19, 2010. All 
applications will proceed through a three-step process:
    1. Screening for completeness and eligibility;
    2. Evaluation review by a technical panel applying ``evaluation 
criteria;'' and
    3. Final review and selection by the FRA Administrator, applying 
``selection criteria.''
    All applications will first be screened for completeness, as well 
as applicant and project eligibility. Applications determined to be 
both complete and eligible will be referred to a technical panel 
consisting of subject-matter experts for a merit-based evaluation 
review. The panels will be comprised of professional staff employed by 
FRA and other DOT modal administrations, as appropriate.
    Applications will be individually reviewed and assessed against the 
evaluation criteria outlined in Section 4.2. For each of the criteria, 
the panel will assign a rating of between zero and three points, based 
on the application's fulfillment of the objectives of each criterion. 
These individual criterion ratings will then be combined according to 
priority of criteria, to arrive at an overall rating for the 
application.
    The evaluation criteria, in order of priority, are:
    1. Potential Transportation and Public Benefits.
    2. Future Program Viability and Sustainability.
    3. Project Delivery Approach.
    Applications will be reviewed based on both the underlying projects 
being studied and the quality of the planning activities being 
proposed. These criteria relate to the underlying projects or corridors 
that are the subject of the planning activities as well as the proposed 
planning activities themselves.
    In addition to the ratings assigned by the technical evaluation 
panels, the FRA Administrator may take into account several cross-
cutting and comparative selection criteria to determine awards. The 
Administrator will review the preliminary results to ensure that the 
scoring has been applied consistently, and that the collective results 
meet several key priorities essential to the success and sustainability 
of the program (see Section 4.3). The four selection criteria are:
    1. Region/Location.
    2. Innovation/Resource Development.
    3. Partnerships/Participation.
    4. Prior HSIPR Funding Decisions and/or State Investments.

4.2 Evaluation Criteria

4.2.1 Potential Transportation and Public Benefits
    The review panel will consider how the proposed service would 
result in future transportation and public benefits by evaluating the 
characteristics of the underlying projects or corridors that are the 
subjects of the study.
    Some of the factors that may be considered for passenger rail 
corridor investment programs include:
     The clarity and detail with which the applicant has 
identified the problem to be addressed by the proposed service;
     The market potential of the corridor being studied, taking 
into consideration

[[Page 16570]]

such factors as population, density, economic activity, and travel 
patterns;
     The potential for the corridor to deliver high-speed and 
intercity passenger rail service benefits, including ridership, on-time 
performance, travel time, service frequencies, safety and other 
factors;
     The potential of the corridor program to promote economic 
development, including contributions to a sustainable U.S. 
manufacturing and supply base;
     The potential of the corridor program to enhance energy 
efficiency and environmental quality;
     The potential of the corridor program to promote 
interconnected livable communities, including complementing local or 
State efforts to concentrate higher-density, mixed-use, development in 
areas proximate to multi-modal transportation options (including 
intercity passenger rail stations); and
     The consideration of other transportation modes in the 
planning process.
    Some of the factors that may be considered for State rail plans 
include:
     The clarity and detail with which the applicant has 
identified the problems to be addressed by the State's vision for rail 
transportation and rail investment program;
     The potential for the State rail plan to lead to passenger 
and freight rail service benefits, including ridership, on-time 
performance, travel time, service frequencies, goods movement, safety 
and other factors;
     The potential of the State rail plan to promote economic 
development, including contributions to a sustainable U.S. 
manufacturing and supply base;
     The potential of the State rail plan to enhance energy 
efficiency and environmental quality;
     The potential of the State rail plan to promote 
interconnected livable communities, including complementing local or 
State efforts to concentrate higher-density, mixed-use, development in 
areas proximate to multi-modal transportation options (including 
intercity passenger rail stations); and
     The integration of the State rail plan with the planning 
processes of other transportation modes.
4.2.2 Future Program Viability and Sustainability
    This criterion will be used to evaluate the extent to which the 
planning project will support a viable and sustainable high-speed rail 
program, including consideration of:
     The likelihood that the final deliverables (Service 
Development Plan, Environmental Document, or State Rail Plan) will be 
ready and capable of being implemented;
     The demonstrated commitment of the State and other 
stakeholders to quickly execute the program once planning is complete;
     The degree to which the planning process meaningfully 
incorporates input from affected communities, local governments, 
regional councils and planning organizations, neighboring States, 
railroads, transportation modal partners, environmental interests, the 
public and other stakeholders--early and throughout the process;
     The likelihood that the corridor programs being studied 
can yield measurable service and public benefits in a reasonable period 
of time;
     The demonstrated ability of the applicant to support the 
future capital and operating needs of the corridor(s) being studied;
     The thoroughness of the proposed deliverables;
     The quality of proposed methodology and assumptions; and
     The applicant's contribution of a cost share greater than 
the required minimum of 20 percent.
4.2.3 Project Delivery Approach
    Applications will be evaluated on the applicant's ability and 
approach to deliver the planning study successfully and in a timely 
fashion, including consideration of:
     The applicant's financial, legal, and technical capacity 
to implement the project;
     The applicant's experience in administering similar grants 
and planning efforts;
     The soundness and thoroughness of the cost methodologies 
and assumptions, and estimates for the proposed planning activities;
     The reasonableness and timeliness of the milestone and 
completion schedule;
     The thoroughness and quality of the Statement of Work;
     The timing and amount of the project's future noncommitted 
investments;
     The comprehensiveness and sufficiency, at the time of 
application, of agreements with key partners that will be involved in 
conducting the planning effort; and
     The overall completeness and quality of the application, 
including the comprehensiveness of its supporting documentation.

4.3 Selection Criteria

4.3.1 Region/Location
     Ensuring appropriate level of regional balance across the 
country.
     Ensuring promotion of livable communities in urban and 
rural locations.
     Ensuring consistency with national transportation and rail 
network objectives.
     Ensuring integration with other rail services and 
transportation modes.
4.3.2 Innovation/Resource Development
     Advancing the state of the art in modeling techniques for 
assessing potential intercity passenger rail costs and benefits.
     Promoting domestic manufacturing, supply and industrial 
development, including U.S.-based manufacturing and supply industries.
     Developing professional railroad engineering, operating, 
planning and management capacity needed for sustainable high-speed 
intercity passenger rail development.
     Utilizing innovative planning techniques, such as new 
methods for engaging the public.
4.3.3 Partnerships/Participation
     Where corridors span multiple States, emphasizing those 
that have organized multi-State partnerships with joint planning and 
prioritization of investments.
     Employing creative approaches to ensure workforce 
diversity and use of disadvantaged and minority business enterprises.
     Engaging local communities and a variety of other 
stakeholder groups in the planning process.
4.3.4 Prior HSIPR Funding Decisions and/or State Investments
     Assessing how a proposed project would complement previous 
construction or planning grants made by the HSIPR program.
     Assessing how the proposed project would complement 
previous State investments in high-speed intercity passenger rail.

Section 5: Award Administration Information

5.1 Award Notices

    Upon approval of an application, notification will be sent to the 
grant recipient through Grants.gov and via a mailed letter.
    FRA will publicly announce selected projects. For projects that 
were not selected, FRA will notify the applicants

[[Page 16571]]

of the decision and provide the following:
     Suggestions on application revisions for any subsequent 
resubmission rounds (if desired by applicant); and
     Guidance regarding subsequent rounds of funding.

5.2 Administrative and National Policy Requirements

    Grant recipients must follow all administrative and national policy 
requirements including: Procurement standards, compliance with Federal 
civil rights laws and regulations, disadvantaged business enterprises 
(DBE), debarment and suspension, drug-free workplace, FRA's and OMB's 
Assurances and Certifications, ADA, buy America, environmental 
protection, NEPA, and environmental justice. For additional details on 
these administrative and national policy requirements, please refer to 
FRA's HSIPR Notice of Grant Award Example under the high-speed rail 
link on FRA's Web page at https://www.fra.dot.gov/Pages/2374.shmtl, 
which includes a sample copy of FRA's current model grant/cooperative 
agreement.

5.3 Program Specific Grant Requirements

    Grant recipients receiving PRIIA-authorized grants must comply with 
all requirements set forth in PRIIA, including adhering to: Buy 
America, Labor Protection, and Davis-Bacon Act. For a complete list of 
all PRIIA-specific grant requirements, refer to Appendix 2.1.

5.4 General Requirements

    Grant recipients must comply with reporting requirements. All post-
award information pertaining to reporting, auditing, monitoring, and 
the close-out process is detailed in Appendix 2.2.

Section 6: Questions and Clarifications

    Questions about this guidance and the application process should be 
submitted to the HSIPR Program Manager via e-mail at HSIPR@dot.gov.

                            List of Acronyms
------------------------------------------------------------------------
           Acronym                              Meaning
------------------------------------------------------------------------
ACF..........................  Administration for Children and Families.
ADA..........................  Americans with Disabilities Act.
ARRA.........................  American Recovery and Reinvestment Act of
                                2009 (Pub. L. 111-5).
CAST.........................  Custom Applications Support and Training
                                Unit (GrantSolutions).
CCR..........................  Central Contractor Registration database.
CE...........................  Categorical Exclusion--a class of action
                                for the NEPA process.
CFS report...................  ``Commercial Feasibility Study,'' Federal
                                Railroad Administration, High-Speed
                                Ground Transportation for America,
                                September 1997; available at: https://www.fra.dot.gov/Pages/515.
Department...................  The U.S. Department of Transportation.
DUNS.........................  Data Universal Number System.
EA...........................  Environmental Assessment--a NEPA
                                document.
EIS..........................  Environmental Impact Statement--the most
                                extensive type of NEPA document.
FD...........................  Final Design.
FONSI........................  Finding of No Significant Impact--a
                                possible decision concluding the NEPA
                                process.
FRA..........................  Federal Railroad Administration--an
                                Operating Administration of the U.S.
                                Department of Transportation.
FTA..........................  Federal Transit Administration.
FY...........................  Fiscal Year.
FY 2008 DOT Appropriations     Transportation, Housing and Urban
 Act.                           Development, and Related Agencies
                                Appropriations Act, 2008--Title I of
                                Division K of Public Law 110-161,
                                December 26, 2007.
FY 2009 DOT Appropriations     Transportation, Housing and Urban
 Act.                           Development, and Related Agencies
                                Appropriations Act, 2009--Title I of
                                Division I of Public Law 111-8, March
                                11, 2009.
FY 2010 DOT Appropriations     Transportation, Housing and Urban
 Act.                           Development, and Related Agencies
                                Appropriations Act, 2010--Title I of
                                Division A of Public Law 111-117,
                                December 16, 2009.
GS...........................  GrantSolutions Grants Management System.
ICC..........................  Interstate Commerce Commission.
LOI..........................  Letter of Intent.
mph..........................  Miles Per Hour.
NEPA.........................  National Environmental Policy Act.
NTD..........................  National Transit Database.
OTP..........................  On-time performance
PE...........................  Preliminary engineering.
PRIIA........................  Passenger Rail Investment and Improvement
                                Act of 2008 (Division B of Public Law
                                110-432).
PTC..........................  Positive Train Control.
ROD..........................  Record of Decision--a possible decision
                                concluding of the NEPA process.
RSIA.........................  Rail Safety Improvement Act of 2008
                                (Division A of Pub. L. 110-432, October
                                16, 2008).
State DOT....................  State Department of Transportation.
State Capital Grant Program..  Capital Assistance to States--Intercity
                                Passenger Rail Service program--
                                established in FY 2008 DOT
                                Appropriations Act and continued in the
                                FY 2009 DOT Appropriations Act.
------------------------------------------------------------------------

Appendix 1: Additional Information on Eligibility

Appendix 1.1 Applicant Types

    State--A State department of transportation (State DOT) which is 
the State-wide instrumentality or agency of a State, in the form of 
a department, commission, board, or official of any State, charged 
by its laws with the responsibility for transportation-related 
matters within the State, including high-speed intercity passenger 
rail.
    Group of States--A group of two or more States in which an 
agreement has been established to work in coordination to build and 
operate rail projects within specified boundaries and within the 
duration of agreement. The agreement should specify the commitments 
(financial and otherwise) of all parties to developing and 
maintaining rail operations for a specified corridor. This type of 
agreement requires the backing of several political and 
administrative entities within each State. Such agreement should 
include but not be limited to the following: Identification of all 
parties involved, the duration of the agreement, governance

[[Page 16572]]

arrangements, commitment of partners, risk and benefits sharing 
arrangements, liabilities, level of service per partner or client, 
services to be provided, dispute resolution, substandard 
performance, termination, signatories. A group of States wishing to 
submit an application must designate one State within the group to 
serve as the lead State for the application. This lead State will be 
responsible for submitting the application and administrating any 
grant that is awarded to the group of States.
    Interstate Compact--An entity created through an agreement 
between two or more States. Frequently, these compacts create a new 
governmental entity that is responsible for administering or 
improving some shared resource, such as public transportation 
infrastructure. In some cases, a compact serves simply as a 
coordination mechanism between independent authorities in the member 
States. Article I, Section 10 of the United States Constitution 
provides that no State shall enter into an agreement or compact with 
another State without the consent of Congress. Interstate compacts 
for the purpose of intercity passenger rail development have been 
established previously, based on the implied general consent of 
Congress expressed through Public Law 98-358, in which Congress 
explicitly granted consent to the creation of an interstate compact 
between the States of Ohio, Indiana, Michigan, Pennsylvania, 
Illinois, West Virginia, and Kentucky for the purpose of developing 
intercity passenger rail.
    Public Agencies, established by one or more States (Having 
responsibility for providing intercity passenger rail service)--A 
publicly owned not-for-profit agency created and authorized under 
State law and responsible for providing intercity passenger rail 
service (under PRIIA Section 301) or high-speed rail service (under 
PRIIA Section 501).
    Amtrak, in cooperation with States--The National Railroad 
Passenger Corporation undertaking a project subject to an agreement 
with one or more States (as defined above) (under PRIIA Sections 301 
or 302).
    Amtrak--The National Railroad Passenger Corporation undertaking 
a project authorized under PRIIA Section 501.

Appendix 1.2 Definition of Intercity Passenger Rail

    ``Intercity rail passenger transportation'' is defined at 49 
U.S.C. 24102(4) as ``rail passenger transportation except commuter 
rail passenger transportation.'' Likewise, ``commuter rail passenger 
transportation'' is defined at 49 U.S.C. 24102(3) as ``short-haul 
rail passenger transportation in metropolitan and suburban areas 
usually having reduced fare, multiple ride, and commuter tickets and 
morning and evening peak period operations.'' In common use, the 
general definition of ``rail passenger transportation'' excludes 
types of local or regional rail transit, such as light rail, 
streetcars, and heavy rail. Similarly, both intercity passenger rail 
transportation and commuter rail passenger transportation exclude 
single-purpose scenic or tourist railroad operations.
    The since-terminated Interstate Commerce Commission (ICC) 
established six features to aid in classifying a service as 
``commuter'' rather than ``intercity'' rail passenger 
transportation:\1\
---------------------------------------------------------------------------

    \1\ Penn Central Transportation Company Discontinuance or Change 
in Service of 22 Trains between Boston, Mass, and Providence R.I., 
February 10, 1971, I.C.C. 338, 318-333.
---------------------------------------------------------------------------

     The passenger service is primarily being used by 
patrons traveling on a regular basis either within a metropolitan 
area or between a metropolitan area and its suburbs;
     The service is usually characterized by operation 
performed at morning and peak periods of travel;
     The service usually honors commutation or multiple-ride 
tickets at a fare reduced below the ordinary coach fare and carries 
the majority of its patrons on such a reduced fare basis;
     The service makes several stops at short intervals 
either within a zone or along the entire route;
     The equipment used may consist of little more than 
ordinary coaches; and
     The service should not extend more than 100 miles at 
the most, except in rare instances; although service over shorter 
distances may not be commuter or short haul within the meaning of 
this exclusion.
    FTA further refined the definition of commuter rail in the 
glossary for its National Transit Database (NTD) \2\ Reporting 
Manual. In particular, FTA refined the ICC's third ``feature'' by 
specifying that ``predominantly commuter [rail passenger] service 
means that for any given trip segment (i.e., distance between any 
two stations), more than 50 percent of the average daily ridership 
travels on the train at least three times a week.''
---------------------------------------------------------------------------

    \2\ In additional to serving as a reference database, the NTD 
captures data that serve as the basis for apportioning and 
allocating funding to eligible grantees under FTA's formula grant 
programs.
---------------------------------------------------------------------------

    In judging the eligibility of an application under this 
solicitation, FRA will determine whether the rail passenger service 
that is primarily intended to benefit from the proposal constitutes 
``intercity passenger rail transportation'' under the statutory 
definition and ICC and FTA interpretations. FRA may also take into 
account whether the primary intended benefiting service has been or 
is currently the direct or intended beneficiary of funding provided 
by another Federal agency (e.g., FTA) for the purpose of improving 
commuter rail passenger transportation and whether the service in 
question is or will be operated by or on behalf of a local, 
regional, or State entity whose primary rail transportation mission 
is the provision of commuter or transit service.

Appendix 2: Additional Information on Award Administration and Grant 
Conditions

Appendix 2.1 Program Specific Grant Requirements

    PRIIA established a series of grant conditions applicable to 
intercity passenger rail grant awards (see 49 U.S.C. 24405) and the 
FY 2010 DOT Appropriations Act applies these conditions also to 
congestion and high-speed rail grants. While these requirements may 
have limited applicability with respect to the planning activities 
to be funded under this solicitation, they are set out below for the 
information of the applicants.

Appendix 2.1.1 Buy America

    Grant recipients must comply with the Buy America provisions set 
forth in 49 U.S.C. 24405(a), which specifically provide that the 
Secretary of Transportation may obligate ARRA funds for a high-speed 
intercity passenger rail or congestion project only if the steel, 
iron, and manufactured goods used in the project are produced in the 
United States. The Secretary (or the Secretary's delegate, the FRA 
Administrator) may waive this requirement if the Secretary finds 
that applying this requirement would be inconsistent with the public 
interest; the steel, iron, and goods produced in the United States 
are not produced in a sufficient and reasonably available amount or 
are not of a satisfactory quality; rolling stock or power train 
equipment cannot be bought and delivered in the United States within 
a reasonable time; or including domestic material will increase the 
cost of the overall project by more than 25 percent. For purposes of 
implementing these requirements, in calculating the components' 
costs, labor costs involved in final assembly shall not be included 
in the calculation. If the Secretary determines that it is necessary 
to waive the application of the Buy America requirements, the 
Secretary is required before the date on which such finding takes 
effect to publish in the Federal Register a detailed written 
justification as to why the waiver is needed; and provide notice of 
such finding and an opportunity for public comment on such finding, 
for a reasonable period of time, not to exceed 15 days. The 
Secretary may not make a waiver for goods produced in a foreign 
country if the Secretary, in consultation with the United States 
Trade Representative, decides that the government of that foreign 
country has an agreement with the United States Government under 
which the Secretary has waived the requirement of this subsection, 
and the government of that foreign country has violated th