CAPITAL ASSISTANCE FOR INTERCITY PASSENGER RAIL SERVICE.

SEC. 301. CAPITAL ASSISTANCE FOR INTERCITY PASSENGER RAIL SERVICE.(a) In General.—Part C of subtitle V is amended by inserting the following after chapter 243:“CHAPTER 244—INTERCITY PASSENGER RAIL SERVICE CORRIDOR CAPITAL ASSISTANCE “Sec. “24401. Definitions. “24402. Capital investment grants to support intercity passenger rail service. “24403. Project management oversight. “24404. Use of capital grants to finance first-dollar liability of grant project. “24405. Grant conditions. “24406. Authorization of appropriations. “§ 24401. Definitions “In this chapter:122 STAT. 4936“(1) Applicant.—The term ‘applicant’ means a State (including the District of Columbia), a group of States, an Interstate Compact, or a public agency established by one or more States and having responsibility for providing intercity passenger rail service.“(2) Capital project.—The term ‘capital project’ means a project or program in a State rail plan developed under chapter 227 of this title for—“(A) acquiring, constructing, improving, or inspecting equipment, track and track structures, or a facility for use in or for the primary benefit of intercity passenger rail service, expenses incidental to the acquisition or construction (including designing, engineering, location surveying, mapping, environmental studies, and acquiring rights-of-way), payments for the capital portions of rail trackage rights agreements, highway-rail grade crossing improvements related to intercity passenger rail service, mitigating environmental impacts, communication and signalization improvements, relocation assistance, acquiring replacement housing sites, and acquiring, constructing, relocating, and rehabilitating replacement housing;“(B) rehabilitating, remanufacturing or overhauling rail rolling stock and facilities used primarily in intercity passenger rail service;“(C) costs associated with developing State rail plans; and“(D) the first-dollar liability costs for insurance related to the provision of intercity passenger rail service under section 24404.“(3) Intercity passenger rail service.—The term ‘intercity passenger rail service’ means intercity rail passenger transportation, as defined in section 24102 of this title. “§ 24402. Capital investment grants to support intercity passenger rail service“(a) General Authority.—“(1) The Secretary of Transportation may make grants under this section to an applicant to assist in financing the capital costs of facilities, infrastructure, and equipment necessary to provide or improve intercity passenger rail transportation.“(2) Consistent with the requirements of this chapter, the Secretary shall require that a grant under this section be subject to the terms, conditions, requirements, and provisions the Secretary decides are necessary or appropriate for the purposes of this section, including requirements for the disposition of net increases in value of real property resulting from the project assisted under this section and shall prescribe procedures and schedules for the awarding of grants under this title, including application and qualification procedures and a record of decision on applicant eligibility. The Secretary shall issue a final rule establishing such procedures not later than 2 years after the date of enactment of the Passenger Rail Investment and Improvement Act of 2008. For the period prior to the earlier of the issuance of such a rule or 2 years after the date of enactment of such Act, the Secretary shall issue interim guidance to applicants covering such procedures, and 122 STAT. 4937 administer the grant program authorized under this section pursuant to such guidance.“(b) Project as Part of State Rail Plan.—“(1) The Secretary may not approve a grant for a project under this section unless the Secretary finds that the project is part of a State rail plan developed under chapter 227 of this title, or under the plan required by section 211 of the Passenger Rail Investment and Improvement Act of 2008, and that the applicant or recipient has or will have the legal, financial, and technical capacity to carry out the project, satisfactory continuing control over the use of the equipment or facilities, and the capability and willingness to maintain the equipment or facilities.“(2) An applicant shall provide sufficient information upon which the Secretary can make the findings required by this subsection.“(3) If an applicant has not selected the proposed operator of its service competitively, the applicant shall provide written justification to the Secretary showing why the proposed operator is the best, taking into account price and other factors, and that use of the proposed operator will not unnecessarily increase the cost of the project.“(c) Project Selection Criteria.—The Secretary, in selecting the recipients of financial assistance to be provided under subsection (a), shall—“(1) require—“(A) that the project be part of a State rail plan developed under chapter 227 of this title, or under the plan required by section 211 of the Passenger Rail Investment and Improvement Act of 2008;“(B) that the applicant or recipient has or will have the legal, financial, and technical capacity to carry out the project, satisfactory continuing control over the use of the equipment or facilities, and the capability and willingness to maintain the equipment or facilities;“(C) that the applicant provides sufficient information upon which the Secretary can make the findings required by this subsection;“(D) that if an applicant has selected the proposed operator of its service competitively, that the applicant provide written justification to the Secretary showing why the proposed operator is the best, taking into account costs and other factors;“(E) that each proposed project meet all safety and security requirements that are applicable to the project under law; and“(F) that each project be compatible with, and operated in conformance with—“(i) plans developed pursuant to the requirements of section 135 of title 23, United States Code; and“(ii) the national rail plan (if it is available);“(2) select projects—“(A) that are anticipated to result in significant improvements to intercity rail passenger service, including, but not limited to, consideration of—122 STAT. 4938“(i) the project’s levels of estimated ridership, increased on-time performance, reduced trip time, additional service frequency to meet anticipated or existing demand, or other significant service enhancements as measured against minimum standards developed under section 207 of the Passenger Rail Investment and Improvement Act of 2008;“(ii) the project’s anticipated favorable impact on air or highway traffic congestion, capacity, or safety; and“(iii) identification of the project by the Surface Transportation Board as necessary to improve the on-time performance and reliability of intercity passenger rail under section 24308(f);“(B) for which there is a high degree of confidence that the proposed project is feasible and will result in the anticipated benefits, as indicated by—“(i) the project’s precommencement compliance with environmental protection requirements;“(ii) the readiness of the project to be commenced;“(iii) the timing and amount of the project’s future noncommitted investments;“(iv) the commitment of any affected host rail carrier to ensure the realization of the anticipated benefits; and“(v) other relevant factors as determined by the Secretary; and“(C) for which the level of the anticipated benefits compares favorably to the amount of Federal funding requested under this chapter; and“(3) give greater consideration to projects—“(A) that are anticipated to result in benefits to other modes transportation and to the public at large, including, but not limited to, consideration of the project’s—“(i) encouragement of intermodal connectivity through provision of direct connections between train stations, airports, bus terminals, subway stations, ferry ports, and other modes of transportation;“(ii) anticipated improvement of freight or commuter rail operations;“(iii) encouragement of the use of positive train control technologies;“(iv) environmental benefits, including projects that involve the purchase of environmentally sensitive, fuel-efficient, and cost-effective passenger rail equipment;“(v) anticipated positive economic and employment impacts;“(vi) encouragement of State and private contributions toward station development, energy and environmentally efficiency, and economic benefits; and“(vii) falling under the description in section 5302(a)(1)(G) of this title as defined to support intercity passenger rail service; and“(B) that incorporate equitable financial participation in the project’s financing, including, but not limited to, consideration of—122 STAT. 4939“(i) donated property interests or services;“(ii) financial contributions by freight and commuter rail carriers commensurate with the benefit expected to their operations; and“(iii) financial commitments from host railroads, non-Federal governmental entities, nongovernmental entities, and others.“(d) State Rail Plans.—State rail plans completed before the date of enactment of the Passenger Rail Investment and Improvement Act of 2008 that substantially meet the requirements of chapter 227 of this title, as determined by the Secretary pursuant to section 22506 of this title, shall be deemed by the Secretary to have met the requirements of subsection (c)(1)(A) of this section.“(e) Amtrak Eligibility.—To receive a grant under this section, Amtrak may enter into a cooperative agreement with 1 or more States to carry out 1 or more projects on a State rail plan’s ranked list of rail capital projects developed under section 22504(a)(5) of this title. For such a grant, Amtrak may not use Federal funds authorized under section 101(a) or (c) of the Passenger Rail Investment and Improvement Act of 2008 to fulfill the non-Federal share requirements under subsection (g) of this section.“(f) Letters of Intent and Early Systems Work Agreements.—“(1) The Secretary may issue a letter of intent to an applicant announcing an intention to obligate, for a major capital project under this section, an amount from future available budget authority specified in law that is not more than the amount stipulated as the financial participation of the Secretary in the project.“(2) At least 30 days before issuing a letter under paragraph (1) of this subsection, the Secretary shall notify in writing the Committee on Transportation and Infrastructure of the House of Representatives, the Committee on Commerce, Science, and Transportation of the Senate, and the House and Senate Committees on Appropriations of the proposed letter or agreement. The Secretary shall include with the notification a copy of the proposed letter or agreement, the criteria used in subsection (c) for selecting the project for a grant award, and a description of how the project meets such criteria.“(3) An obligation or administrative commitment may be made only when amounts are appropriated. The letter of intent shall state that the contingent commitment is not an obligation of the Federal Government, and is subject to the availability of appropriations under Federal law and to Federal laws in force or enacted after the date of the contingent commitment.“(g) Federal Share of Net Project Cost.—“(1)(A) Based on engineering studies, studies of economic feasibility, and information on the expected use of equipment or facilities, the Secretary shall estimate the net project cost.“(B) A grant for the project shall not exceed 80 percent of the project net capital cost.“(C) The Secretary shall give priority in allocating future obligations and contingent commitments to incur obligations to grant requests seeking a lower Federal share of the project net capital cost.“(2) Up to an additional 20 percent of the required non-Federal funds may be funded from amounts appropriated to 122 STAT. 4940 or made available to a department or agency of the Federal Government that are eligible to be expended for transportation.“(3) The following amounts, not to exceed $15,000,000 per fiscal year, shall be available to each applicant as a credit toward an applicant’s matching requirement for a grant awarded under this section—“(A) in each of fiscal years 2009, 2010, and 2011—“(i) 50 percent of the average of amounts expended in fiscal years 2002 through 2008 by an applicant for capital projects related to intercity passenger rail service; and“(ii) 50 percent of the average of amounts expended in fiscal years 2002 through 2008 by an applicant for operating costs of such service; and“(B) in each of fiscal years 2010, 2011 and 2012, 50 percent of the amount by which the amounts expended for capital projects and operating costs related to intercity passenger rail service by an applicant in the prior fiscal year exceed the average capital and operating expenditures made for such service in fiscal years 2006, 2007, and 2008.The Secretary may require such information as necessary to verify such expenditures. Credits made available to an applicant in a fiscal year under this paragraph may only be applied towards grants awarded in that fiscal year.“(4) The Federal share of expenditures for capital improvements under this chapter may not exceed 100 percent.“(h) 2-Year Availability.—Funds appropriated under this section shall remain available until expended. If any amount provided as a grant under this section is not obligated or expended for the purposes described in subsection (a) within 2 years after the date on which the State received the grant, such sums shall be returned to the Secretary for other intercity passenger rail development projects under this section at the discretion of the Secretary.“(i) Cooperative Agreements.—“(1) In general.—A metropolitan planning organization, State transportation department, or other project sponsor may enter into an agreement with any public, private, or nonprofit entity to cooperatively implement any project funded with a grant under this chapter.“(2) Forms of participation.—Participation by an entity under paragraph (1) may consist of—“(A) ownership or operation of any land, facility, locomotive, rail car, vehicle, or other physical asset associated with the project;“(B) cost-sharing of any project expense;“(C) carrying out administration, construction management, project management, project operation, or any other management or operational duty associated with the project; and“(D) any other form of participation approved by the Secretary.“(3) Suballocation.—A State may allocate funds under this section to any entity described in paragraph (1).“(j) Special Transportation Circumstances.—In carrying out this section, the Secretary shall allocate an appropriate portion of the amounts available under this section to provide grants to States—122 STAT. 4941“(1) in which there is no intercity passenger rail service for the purpose of funding freight rail capital projects that are on a State rail plan developed under chapter 227 of this title that provide public benefits (as defined in chapter 227) as determined by the Secretary; or“(2) in which the rail transportation system is not physically connected to rail systems in the continental United States or may not otherwise qualify for a grant under this section due to the unique characteristics of the geography of that State or other relevant considerations, for the purpose of funding transportation-related capital projects.“(k) Small Capital Projects.—The Secretary shall make not less than 5 percent annually available from the amounts authorized under section 101(c) of the Passenger Rail Investment and Improvement Act of 2008 beginning in fiscal year 2009 for grants for capital projects eligible under this section not exceeding $2,000,000, including costs eligible under section 209(d) of that Act. For grants awarded under this subsection, the Secretary may waive requirements of this section, including state rail plan requirements, as appropriate.“(l) Nonmotorized Transportation Access and Storage.—Grants under this chapter may be used to provide access to rolling stock for nonmotorized transportation, including bicycles, and recreational equipment, and to provide storage capacity in trains for such transportation, equipment, and other luggage, to ensure passenger safety. “§ 24403. Project management oversight“(a) Project Management Plan Requirements.—To receive Federal financial assistance for a major capital project under this chapter, an applicant must prepare and carry out a project management plan approved by the Secretary of Transportation. The plan shall provide for—“(1) adequate recipient staff organization with well-defined reporting relationships, statements of functional responsibilities, job descriptions, and job qualifications;“(2) a budget covering the project management organization, appropriate consultants, property acquisition, utility relocation, systems demonstration staff, audits, and miscellaneous payments the recipient may be prepared to justify;“(3) a construction schedule for the project;“(4) a document control procedure and recordkeeping system;“(5) a change order procedure that includes a documented, systematic approach to handling the construction change orders;“(6) organizational structures, management skills, and staffing levels required throughout the construction phase;“(7) quality control and quality assurance functions, procedures, and responsibilities for construction, system installation, and integration of system components;“(8) material testing policies and procedures;“(9) internal plan implementation and reporting requirements;“(10) criteria and procedures to be used for testing the operational system or its major components;122 STAT. 4942“(11) periodic updates of the plan, especially related to project budget and project schedule, financing, and ridership estimates; and“(12) the recipient’s commitment to submit periodically a project budget and project schedule to the Secretary.“(b) Secretarial Oversight.—“(1) The Secretary may use no more than 1 percent of amounts made available in a fiscal year for capital projects under this chapter to enter into contracts to oversee the construction of such projects.“(2) The Secretary may use amounts available under paragraph (1) of this subsection to make contracts for safety, procurement, management, and financial compliance reviews and audits of a recipient of amounts under paragraph (1).“(3) The Federal Government shall pay the entire cost of carrying out a contract under this subsection.“(c) Access to Sites and Records.—Each recipient of assistance under this chapter shall provide the Secretary and a contractor the Secretary chooses under subsection (b) of this section with access to the construction sites and records of the recipient when reasonably necessary. “§ 24404. Use of capital grants to finance first-dollar liability of grant project “Notwithstanding the requirements of section 24402 of this chapter, the Secretary of Transportation may approve the use of a capital assistance grant under this chapter to fund self-insured retention of risk for the first tier of liability insurance coverage for rail passenger service associated with the grant, but the coverage may not exceed $20,000,000 per occurrence or $20,000,000 in aggregate per year. “§ 24405. Grant conditions“(a) Buy America.—(1) The Secretary of Transportation may obligate an amount that may be appropriated to carry out this chapter for a project only if the steel, iron, and manufactured goods used in the project are produced in the United States.“(2) The Secretary of Transportation may waive paragraph (1) of this subsection if the Secretary finds that—“(A) applying paragraph (1) would be inconsistent with the public interest;“(B) 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;“(C) rolling stock or power train equipment cannot be bought and delivered in the United States within a reasonable time; or“(D) including domestic material will increase the cost of the overall project by more than 25 percent.“(3) For purposes of this subsection, in calculating the components’ costs, labor costs involved in final assembly shall not be included in the calculation.“(4) If the Secretary determines that it is necessary to waive the application of paragraph (1) based on a finding under paragraph (2), the Secretary shall, before the date on which such finding takes effect—122 STAT. 4943“(A) publish in the Federal Register a detailed written justification as to why the waiver is needed; and“(B) 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.“(5) Not later than December 31, 2012, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report on any waivers granted under paragraph (2).“(6) The Secretary of Transportation may not make a waiver under paragraph (2) of this subsection 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—“(A) has an agreement with the United States Government under which the Secretary has waived the requirement of this subsection; and“(B) has violated the agreement by discriminating against goods to which this subsection applies that are produced in the United States and to which the agreement applies.“(7) A person is ineligible to receive a contract or subcontract made with amounts authorized under this chapter if a court or department, agency, or instrumentality of the Government decides the person intentionally—“(A) affixed a ‘Made in America’ label, or a label with an inscription having the same meaning, to goods sold in or shipped to the United States that are used in a project to which this subsection applies but not produced in the United States; or“(B) represented that goods described in subparagraph (A) of this paragraph were produced in the United States.“(8) The Secretary may not impose any limitation on assistance provided under this chapter that restricts a State from imposing more stringent requirements than this subsection on the use of articles, materials, and supplies mined, produced, or manufactured in foreign countries in projects carried out with that assistance or restricts a recipient of that assistance from complying with those State-imposed requirements.“(9) The Secretary may allow a manufacturer or supplier of steel, iron, or manufactured goods to correct after bid opening any certification of noncompliance or failure to properly complete the certification (but not including failure to sign the certification) under this subsection if such manufacturer or supplier attests under penalty of perjury that such manufacturer or supplier submitted an incorrect certification as a result of an inadvertent or clerical error. The burden of establishing inadvertent or clerical error is on the manufacturer or supplier.“(10) A party adversely affected by an agency action under this subsection shall have the right to seek review under section 702 of title 5.“(11) The requirements of this subsection shall only apply to projects for which the costs exceed $100,000.“(b) Operators Deemed Rail Carriers and Employers for Certain Purposes.—A person that conducts rail operations over rail infrastructure constructed or improved with funding provided in whole or in part in a grant made under this chapter shall 122 STAT. 4944 be considered a rail carrier as defined in section 10102(5) of this title for purposes of this title and any other statute that adopts that definition or in which that definition applies, including—“(1) the Railroad Retirement Act of 1974 (45 U.S.C. 231 et seq.);“(2) the Railway Labor Act (43 U.S.C. 151 et seq.); and“(3) the Railroad Unemployment Insurance Act (45 U.S.C. 351 et seq.).“(c) Grant Conditions.—The Secretary shall require as a condition of making any grant under this chapter for a project that uses rights-of-way owned by a railroad that—“(1) a written agreement exist between the applicant and the railroad regarding such use and ownership, including—“(A) any compensation for such use;“(B) assurances regarding the adequacy of infrastructure capacity to accommodate both existing and future freight and passenger operations;“(C) an assurance by the railroad that collective bargaining agreements with the railroad’s employees (including terms regulating the contracting of work) will remain in full force and effect according to their terms for work performed by the railroad on the railroad transportation corridor; and“(D) an assurance that an applicant complies with liability requirements consistent with section 28103 of this title; and“(2) the applicant agrees to comply with—“(A) the standards of section 24312 of this title, as such section was in effect on September 1, 2003, with respect to the project in the same manner that Amtrak is required to comply with those standards for construction work financed under an agreement made under section 24308(a) of this title; and“(B) the protective arrangements established under section 504 of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 836) with respect to employees affected by actions taken in connection with the project to be financed in whole or in part by grants under this chapter.“(d) Replacement of Existing Intercity Passenger Rail Service.—“(1) Collective bargaining agreement for intercity passenger rail projects.—Any entity providing intercity passenger railroad transportation that begins operations after the date of enactment of this Act on a project funded in whole or in part by grants made under this chapter and replaces intercity rail passenger service that was provided by Amtrak, unless such service was provided solely by Amtrak to another entity, as of such date shall enter into an agreement with the authorized bargaining agent or agents for adversely affected employees of the predecessor provider that—“(A) gives each such qualified employee of the predecessor provider priority in hiring according to the employee’s seniority on the predecessor provider for each position with the replacing entity that is in the employee’s craft or class and is available within 3 years after the termination of the service being replaced;122 STAT. 4945“(B) establishes a procedure for notifying such an employee of such positions;“(C) establishes a procedure for such an employee to apply for such positions; and“(D) establishes rates of pay, rules, and working conditions.“(2) Immediate replacement service.—“(A) Negotiations.—If the replacement of preexisting intercity rail passenger service occurs concurrent with or within a reasonable time before the commencement of the replacing entity’s rail passenger service, the replacing entity shall give written notice of its plan to replace existing rail passenger service to the authorized collective bargaining agent or agents for the potentially adversely affected employees of the predecessor provider at least 90 days before the date on which it plans to commence service. Within 5 days after the date of receipt of such written notice, negotiations between the replacing entity and the collective bargaining agent or agents for the employees of the predecessor provider shall commence for the purpose of reaching agreement with respect to all matters set forth in subparagraphs (A) through (D) of paragraph (1). The negotiations shall continue for 30 days or until an agreement is reached, whichever is sooner. If at the end of 30 days the parties have not entered into an agreement with respect to all such matters, the unresolved issues shall be submitted for arbitration in accordance with the procedure set forth in subparagraph (B).“(B) Arbitration.—If an agreement has not been entered into with respect to all matters set forth in subparagraphs (A) through (D) of paragraph (1) as described in subparagraph (A) of this paragraph, the parties shall select an arbitrator. If the parties are unable to agree upon the selection of such arbitrator within 5 days, either or both parties shall notify the National Mediation Board, which shall provide a list of seven arbitrators with experience in arbitrating rail labor protection disputes. Within 5 days after such notification, the parties shall alternately strike names from the list until only 1 name remains, and that person shall serve as the neutral arbitrator. Within 45 days after selection of the arbitrator, the arbitrator shall conduct a hearing on the dispute and shall render a decision with respect to the unresolved issues among the matters set forth in subparagraphs (A) through (D) of paragraph (1). The arbitrator shall be guided by prevailing national standard rates of pay, benefits, and working conditions for comparable work. This decision shall be final, binding, and conclusive upon the parties. The salary and expenses of the arbitrator shall be borne equally by the parties; all other expenses shall be paid by the party incurring them.“(3) Service commencement.—A replacing entity under this subsection shall commence service only after an agreement is entered into with respect to the matters set forth in subparagraphs (A) through (D) of paragraph (1) or the decision of the arbitrator has been rendered.122 STAT. 4946“(4) Subsequent replacement of service.—If the replacement of existing rail passenger service takes place within 3 years after the replacing entity commences intercity passenger rail service, the replacing entity and the collective bargaining agent or agents for the adversely affected employees of the predecessor provider shall enter into an agreement with respect to the matters set forth in subparagraphs (A) through (D) of paragraph (1). If the parties have not entered into an agreement with respect to all such matters within 60 days after the date on which the replacing entity replaces the predecessor provider, the parties shall select an arbitrator using the procedures set forth in paragraph (2)(B), who shall, within 20 days after the commencement of the arbitration, conduct a hearing and decide all unresolved issues. This decision shall be final, binding, and conclusive upon the parties.“(e) Inapplicability to Certain Rail Operations.—Nothing in this section applies to—“(1) commuter rail passenger transportation (as defined in section 24102(4) of this title) operations of a State or local government authority (as those terms are defined in section 5302(11) and (6), respectively, of this title) eligible to receive financial assistance under section 5307 of this title, or to its contractor performing services in connection with commuter rail passenger operations (as so defined);“(2) the Alaska Railroad or its contractors; or“(3) Amtrak’s access rights to railroad rights of way and facilities under current law.“(f) Limitation.—No grants shall be provided under this chapter for commuter rail passenger transportation, as defined in section 24102(4) of this title. “§ 24406. Authorization of appropriations “There are authorized to be appropriated to the Secretary of Transportation for capital grants under this chapter the following amounts:“(1) For fiscal year 2009, $100,000,000.“(2) For fiscal year 2010, $300,000,000.“(3) For fiscal year 2011, $400,000,000.“(4) For fiscal year 2012, $500,000,000.“(5) For fiscal year 2013, $600,000,000.” .(b) Conforming Amendment.—The chapter analysis for subtitle V is amended by inserting the following after the item relating to chapter 243: “244. INTERCITY PASSENGER RAIL SERVICE CORRIDOR CAPITAL ASSISTANCE 24401”. (c) Assistance.—In implementing section 24405(a) of title 49, United States Code, the Federal Highway Administration shall, upon request by the Federal Railroad Administration, assist the Federal Railroad Administration in developing a process for posting on its website or distributing via email notices of waiver requests received pursuant to such subsection and soliciting public comments on the intent to issue a waiver. The Federal Railroad Administration’s development of such a process does not relieve the Federal Railroad Administration of the requirements under paragraph (4) of such subsection.122 STAT. 4947