Notice of Request for Proposals for Implementing a High-Speed Rail Corridor, 14212-14217 [2016-05866]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 81, Number 51 (Wednesday, March 16, 2016)]
[Notices]
[Pages 14212-14217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05866]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration


Notice of Request for Proposals for Implementing a High-Speed 
Rail Corridor

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

ACTION: Notice of request for proposals.

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SUMMARY: Section 11308 of the Fixing America's Surface Transportation 
(FAST) Act, Public Law 114-94 (December 4, 2015), requires the 
Secretary of Transportation (Secretary) to ``issue a request for 
proposals for projects for the financing, design, construction, 
operation, and maintenance of a high-speed passenger rail system 
operating within a high-speed rail corridor.'' To satisfy this 
requirement, the FRA is soliciting and encouraging the submission of 
proposals to finance, design, construct, operate, and maintain a high-
speed rail (HSR) system. FRA will review the proposals within 90 days 
of their receipt and the Secretary may establish commissions to further 
review proposals that the Secretary determines warrant further 
consideration.

DATES: All proposals submitted in response to this notice shall be 
submitted by 5 p.m. ET on August 31, 2016, in accordance with the 
instructions in ADDRESSES below.

ADDRESSES: Any questions, responses or proposals in response to this 
notice shall be submitted under the docket number FRA-2016-0014 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.
    Instructions: All submissions must include the agency name and 
docket number (FRA-2016-0014) for this Request for Proposals (RFP) 
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 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. Trevor 
Gibson as specified below.

FOR FURTHER INFORMATION CONTACT: For information from FRA, please 
contact Mr. Trevor Gibson, Office of Railroad Policy and Development, 
Federal Railroad Administration, 1200 New Jersey Avenue SE., MS-20/W36-
411, Washington, DC 20590. Phone (202) 493-6371.

Table of Contents

1. Background on High-Speed Rail (HSR)
2. Background on This RFP
3. Previous Request for Expressions of Interest
4. Who May Respond
5. Performance Standards for HSR Systems
6. Corridor Definitions
7. Required Contents of Proposals
8. Optional Contents Requested for Inclusion in Proposals
9. Format for Submissions
10. Evaluation and Selection Process for Proposals
11. Freedom of Information Act Applicability
12. Requests for Confidential Treatment

    1. Background on High-Speed Rail (HSR): HSR is self-guided 
intercity passenger ground transportation that is

[[Page 14213]]

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.
    America's population is estimated to increase by 70 million people, 
or more than 20 percent, by 2045 (U.S. Department of Transportation, 
Beyond Traffic 2045: Trends and Choices, 2015). The majority of this 
growth will be concentrated in the Nation's growing megaregions--
densely populated, metropolitan areas with interlocking economies and 
shared transportation, environmental, and cultural resources. To 
maintain economic competitiveness and quality-of-life, the U.S. must 
have an interconnected and balanced transportation network that 
maximizes the benefits of every mode. Rail transportation will play a 
critical role in accommodating this growth and provide an alternative 
to the Nation's increasingly congested airports and highways. This 
request for proposals to finance, design, construct, operate, and 
maintain high-speed rail corridors will set the stage for job creation, 
sustainable economic competitiveness, a more resilient infrastructure, 
and a lasting prosperity.
    2. Background on this RFP Section 11308 of the FAST Act, Public Law 
114-94 (December 4, 2015), 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 passenger rail 
system operating within a high-speed rail corridor.'' Potential 
corridors include, but are not limited to, the following:
    (A) Northeast Corridor;
    (B) California Corridor;
    (C) Pacific Northwest Corridor;
    (D) South Central Corridor;
    (E) Gulf Coast Corridor;
    (F) Chicago Hub Network;
    (G) Florida Corridor;
    (H) Southeast Corridor;
    (I) Keystone Corridor;
    (J) Empire Corridor; and
    (K) Northern New England Corridor.
    The FAST Act prescribes that responses to this RFP will be 
considered by the Secretary and possibly by commissions representing 
affected and involved governors, mayors, freight railroads, transit 
authorities, labor organizations, and Amtrak. Based on the results of 
these reviews, proposals may be summarized in one or more reports to 
Congress, which will make recommendations for further action. 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.
    However, no Federal funding is associated with this provision and, 
in the FAST Act, Congress prohibited any Federal agency from taking 
subsequent actions to further ``implement, establish, facilitate, or 
otherwise act upon any proposals'' submitted under this RFP--other than 
the actions described in this notice--without ``explicit statutory 
authority'' to be subsequently provided by Congress. Respondents to 
this RFP acknowledge, by virtue of their response, that the likelihood 
of future funding and implementation of the proposed projects covered 
by this notice is unknown, and that the Federal Government is not 
liable for any costs incurred preparing responses to this notice.
    3. Previous Request for Expressions of Interest: Section 502 of the 
Passenger Rail Investment and Improvement Act of 2008, Public Law 110-
432 (October 16, 2008), required a similar proposal process to the FAST 
Act provisions outlined in this notice. FRA published a request for 
expressions of interest in the Federal Register on December 16, 2008 
(Vol. 73, No. 242, 76443-76448) requiring proposals to be submitted to 
FRA by September 14, 2009. The Secretary did not establish commissions 
to further consider any of the proposals submitted in 2009.
    4. Who May Respond: Responses to this RFP are welcome from all 
sources. Section 11308 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 RFP, that they would be able to assemble a multi-disciplinary team 
that can plan, organize, finance, design, and construct a complete HSR 
system, as well as gain the support of the key public and private 
stakeholders, and successfully operate and maintain it on a long-term 
basis.
    5. Performance Standards for HSR Systems: Section 11308 requires 
that the HSR proposals submitted in response to this RFP meet the 
following travel time performance standards:
    (A) For the 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; 
and
    (B) For all other corridors with existing intercity passenger rail 
service, 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 January 11, 2016) between 
endpoints and all other main corridor city-pairs must be reduced by a 
minimum of 25 percent, and reliable service provided. If no service 
presently exists in the proposed corridor, the respondent will need to 
demonstrate that the proposed service will be reliable and time 
competitive with other modes of transportation in the corridor.
    6. Corridor Definitions: Section 11308 identifies eleven potential 
high speed rail corridors but does not limit proposals to these 
corridors. The corridors listed in Section 11308 are defined as 
follows:
    (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) ``Pacific Northwest Corridor'' between Eugene and Portland, OR, 
Seattle, WA, and Vancouver, BC, Canada;
    (D) ``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;
    (E) ``Gulf Coast Corridor'' along three branches between New 
Orleans, LA and:
    (1) Birmingham, AL and Atlanta, GA;
    (2) Houston, TX; and
    (3) Mobile, AL;
    (F) ``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;
    (G) ``Florida Corridor'' between Miami, Orlando, and the Tampa Bay 
region, FL;
    (H) ``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

[[Page 14214]]

    (3) Atlanta, Macon, and Jesup, GA, thence either or both Savannah, 
GA and Jacksonville FL;
    (I) ``Keystone Corridor'' between Philadelphia, Harrisburg, and 
Pittsburgh, PA, over the route of the former Pennsylvania Railroad;
    (J) ``Empire Corridor'' between New York City, Albany and Buffalo, 
NY, over the route of the former New York Central Railroad; and
    (K) ``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
    7. Required Contents of Proposals: Proposals in response to this 
RFP must include the following:
    (A) The name(s) and qualifications of the person(s) submitting the 
proposal, 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;
    (B) An executive summary, not to exceed 3 pages, of the proposed 
project concept, including:
    (1) Markets served, including a concept map;
    (2) Station locations;
    (3) Trip times for major markets indicating that program 
performance standards will be met;
    (4) Peak and average operating speeds of the train service;
    (5) 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;
    (6) Type of train equipment to be used, the maximum speed of that 
equipment, and any technologies used to meet trip time goals;
    (7) Proposed organizational structure;
    (8) Salient features of the intended operation as they may affect 
operating practices and unit costs;
    (9) Total capital cost and expected contributions by Federal, 
state, and other public and private sources;
    (C) The benefits to the public and the national transportation 
system, including an explanation of why the project is cost-effective 
and what advantages it offers over existing services. Provide a 
detailed technical description of the proposed project, including:
    (1) Populations of markets served by each of the proposed stations;
    (2) Existing intercity traffic (passengers, vehicle capacity, 
frequency) by mode;
    (3) Proposed station locations and, for each, whether it is 
existing or new, and how it maximizes the use of existing 
infrastructure;
    (4) How the project will facilitate convenient intermodal travel 
connections with other transportation services and systems;
    (5) Trip time and fare comparisons among proposed services, 
existing rail services, if any, and competing modes for major city 
pairs;
    (6) An operating plan with train service frequency, timetable, and 
information on intermodal connections;
    (7) Annual ridership and revenue projections for 10 years with 
documentation of assumptions and methods;
    (8) Operating costs with documentation of assumptions and methods;
    (9) The impact of the project on highway and aviation congestion, 
energy consumption, pollutant emissions, land use and economic 
development;
    (10) A description of how the design, construction, implementation, 
and operation of the proposed project will accommodate and allow for 
future growth of existing and projected intercity, commuter, and 
freight rail service;
    (11) The impact of the proposed project on other intercity, 
commuter, and freight rail services;
    (12) Proposed routes and alignments noting the extent of new ROW 
and use of existing ROW;
    (13) Required infrastructure investments and improvements, 
including the feasibility of building new track and method for securing 
required ROW;
    (14) How adverse impacts of the proposed project would be 
mitigated;
    (15) 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;
    (16) 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;
    (17) How the proposed project would contribute to the development 
of a national HSR system;
    (18) A detailed analysis of the methods and technologies for 
achieving the required reductions in trip times and the intended 
reliability standards; and
    (19) Synopses and references for any past high-speed rail studies 
deemed relevant.
    (D) Present a detailed financial plan for the proposed project, 
including:
    (1) Projected annual operating revenues by year and sources;
    (2) Estimates of annual operating costs by type of expenditure;
    (3) 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;
    (4) Sources and descriptions of capital funds, including terms, 
conditions and expectation for return on equity;
    (5) Credit assumptions including sources, guarantees, terms, 
maturity and special conditions;
    (6) A description of the insurance program contemplated for 
construction and operation;
    (7) A description of construction cost risk sharing and rationale 
for the proposed approach;
    (8) A description of revenue and operating cost risk sharing and 
rationale for the proposed approach;
    (9) Projected levels of private investment and sources thereof, 
including the identity of any person or entity that has made or is 
expected to make a commitment to provide or secure funding and the 
amount of such commitment;
    (10) 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
    (11) 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;
    (E) Describe the institutional framework and address other 
institutional issues, including:
    (1) 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

[[Page 14215]]

maintenance of the proposed project (including their equity stakes), 
and the roles of other participants in the operational aspects of the 
proposed project;
    (2) Any new entities required to be created and how they will be 
structured legally and financially;
    (3) Integration of the proposed service with Amtrak, other HSR rail 
services, other intercity passenger systems, and local access/egress 
systems;
    (4) 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;
    (5) Required governmental actions and approvals and the role of the 
state government(s) in implementing the proposal; and
    (6) 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;
    (F) Identify legislative actions needed, if any, to facilitate all 
aspects of the proposed project, including:
    (1) Required Federal, state, and/or local legislation to authorize 
and create a sponsoring entity for the proposed project, or to remove 
legal impediments to project implementation, or otherwise facilitate 
the proposed project;
    (2) Required public funding commitments, Federal, state, and/or 
local; and
    (3) Required to allow the project to benefit from government-
sponsored credit assistance programs, such as the Railroad 
Rehabilitation and Improvement Financing program (45 U.S.C. 821 et 
seq.) and the Transportation Infrastructure Finance and Innovation Act 
program (23 U.S.C. 601 et seq.); and
    (G) Describe how the proposed project will be implemented to comply 
with Federal, state and local laws, including but not limited to:
    (1) 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;
    (2) Buy America, as specified in Section 24405 of title 49 United 
States Code;
    (3) 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 FAST Act;
    (4) Environmental laws and regulations and the status or any 
progress towards completion of required documentation or actions under 
the National Environmental Policy Act (42 U.S.C. 4321 et seq.), the 
National Historic Preservation Act (16 U.S.C. 470 et seq.), Section 
4(f) of the DOT Act (23 U.S.C. 138 and 49 U.S.C. 303), or other 
applicable Federal or state environmental impact assessment laws; and
    (5) The Americans with Disabilities Act, as amended.
    8. Optional Contents Requested for Inclusion in Proposals: 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 
RFP, please consider addressing 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 
corridors?
    (H) Should the commissions required by Section 11308 of the FAST 
Act 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?
    9. Format for Submissions: Each proposal shall be submitted 
according to the instructions in ADDESSES above. Text and graphic 
documents shall be submitted as either Microsoft Word or 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) or Adobe PDF documents.
    Each proposal should not exceed a maximum total of 50 pages, 
excluding appendices. Proposals should be organized by the following 
sections: cover page, proposer name(s) and contact information, 
executive summary, 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 should not exceed 
three (3) pages in length.
    10. Evaluation and Selection Process for Proposals: FRA will 
evaluate each proposal in a phased process. Proposals will first be 
screened for completeness in responding to this RFP. Following this 
initial screening for completeness, proposals will undergo a review and 
selection process as outlined below.
    Selection Criteria: The proposals will be assessed on the extent to 
which each satisfies the following selection factors:
    (1) The project detailed in the proposal demonstrates the ability 
to achieve the specified reduction in minimum intercity rail service 
trip times and the intended reliability standards;
    (2) The project detailed in the proposal is sufficiently credible 
to warrant further consideration, including containing pledges of the 
requisite public or private funding or financing contemplated in the 
proposal. Respondents whose financial plans do not provide adequate 
assurances as to the availability of their intended funding and 
financing sources will not advance to the commission stage of the RFP 
process;
    (3) The project detailed in the proposal is likely to result in a 
positive impact on the Nation's transportation system;
    (4) The project detailed in the proposal is cost-effective; and

[[Page 14216]]

    (5) The project detailed in the proposal is in the public interest.
    Step 1--FRA Review Process: Upon close of the RFP solicitation, FRA 
will evaluate each proposal and determine if it is complete and if 
there is evidence provided in the proposal that supports the 
conclusions, based on the Selection Criteria.
    Step 2--Sufficient Resource Certification Process: The FAST Act 
requires the Secretary to certify to Congress that DOT has sufficient 
resources to undertake the program before any action is taken. The 
Secretary has sent a letter to the Committee on Commerce, Science, and 
Transportation of the Senate, and the Committee on Transportation and 
Infrastructure of the House of Representatives providing a conditional 
certification stating that DOT has the resources to issue the RFP and 
review proposals. Once all the proposals have gone through the FRA 
Review Process, the Secretary can determine the financial and personnel 
resources needed for the remainder of the program. This in turn will 
allow the Secretary to issue a final certification on the sufficiency 
of resources at the Department, or specify the resources that are 
necessary to complete the program. While the FAST Act authorizes funds 
to support the subsequent commission review process, no funds have been 
appropriated for this provision as of the date of this RFP.
    Step 3--Commission Review Process: If the Secretary determines that 
one or more proposals warrant further consideration and the Secretary 
issues a final certification on the sufficiency of resources to 
Congress, then the Secretary will establish a commission for each 
relevant corridor no later than 90 days after the receipt of the 
proposals. Commission members will include affected governors, mayors, 
freight railroads, transit authorities, and labor organizations, as 
well as Amtrak. The commission(s) will review the proposals forwarded 
by the Secretary and prepare a report to the Secretary making 
recommendations for further consideration.
    Step 4--Secretary Selection Process: Within 60 days of receipt of 
each commission's evaluation and recommendations, the Secretary will 
consider the commission report(s) and select proposals that: (1) 
demonstrate a high likelihood of providing substantial benefits to the 
public and the national transportation system; (2) are cost-effective, 
considering public commitments necessary for implementation and 
operation; and (3) promise significant advantages over existing 
services operating in the same HSR corridor. The Secretary will then 
submit one or more reports to Congress on the selected proposals.
    Until Congress issues follow-up actions for selected proposals, no 
Federal agency may take any action to implement, establish, facilitate, 
or otherwise act upon any proposal submitted under Section 11308, other 
than those actions specifically authorized by that Section.
    11. 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.
    12. Requests for Confidential Treatment: FRA recognizes that 
proposals 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 FOIA 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 (D.C. 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 4 
typically involves information for which the release 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 (D.C. 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 11308 of the FAST Act, 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 managing any confidential information is submitted. Thus, 
respondents 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 FOIA (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 
for confidentiality. 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 for 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 include support with 
specific legal authority. If confidentiality is requested for a portion 
of the document, then the person filing the document shall file, 
together with the document, a second copy of the document with the 
information for which confidential treatment is requested redacted. 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 of confidentiality, in whole or in part, and

[[Page 14217]]

an opportunity to 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. Respondents are welcome to 
offer suggestions for managing confidential data along with their 
proposals.

    Issued in Washington, DC, on March 9, 2016.
Sarah E. Feinberg,
Administrator.
[FR Doc. 2016-05866 Filed 3-15-16; 8:45 am]
 BILLING CODE 4910-06-P