Sec. 31322. Determination of eligibility and project selection

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A project shall be eligible to receive credit assistance under the BIFIA program if— the entity proposing to carry out the project submits a letter of interest prior to submission of a formal application for the project; and the project meets the criteria described in this subsection. Except as provided in subparagraph (B), to be eligible for assistance under the BIFIA program, a project shall satisfy applicable creditworthiness standards, which, at a minimum, shall include— adequate coverage requirements to ensure repayment; an investment-grade rating from at least two rating agencies on debt senior to the Federal credit instrument; and a rating from at least two rating agencies on the Federal credit instrument.

In order for a small project to be eligible for assistance under the BIFIA program, such project shall satisfy alternative creditworthiness standards that shall be established by the Assistant Secretary under section 31325 for purposes of this paragraph. A State, local government, agency or instrumentality of a State or local government, public authority, public-private partnership, or any other legal entity undertaking the project and authorized by the Assistant Secretary shall submit a project application that is acceptable to the Assistant Secretary.

Eligible project costs shall be reasonably anticipated to equal or exceed $2,000,000 in the case of a project or program of projects— in which the applicant is a local government, instrumentality of local government, or public authority (other than a public authority that is a Federal or State government or instrumentality); located on a facility owned by a local government; or for which the Assistant Secretary determines that a local government is substantially involved in the development of the project.

The applicable Federal credit instrument shall be repayable, in whole or in part, from— amounts charged to— subscribers of broadband service for such service; or subscribers of any related service provided over the same infrastructure for such related service; user fees; payments owing to the obligor under a public-private partnership; or other dedicated revenue sources that also secure or fund the project obligations. A State, local government, agency or instrumentality of a State or local government, or public authority may submit to the Assistant Secretary an application under paragraph (3), under which a private party to a public-private partnership will be— the obligor; and identified later through completion of a procurement and selection of the private party.

The Assistant Secretary shall determine that financial assistance for the project under the BIFIA program will— foster, if appropriate, partnerships that attract public and private investment for the project; enable the project to proceed at an earlier date than the project would otherwise be able to proceed or reduce the lifecycle costs (including debt service costs) of the project; and reduce the contribution of Federal grant assistance for the project. To be eligible for assistance under the BIFIA program, the applicant shall demonstrate a reasonable expectation that the contracting process for the construction and deployment of infrastructure for the provision of broadband service through the project can commence by no later than 90 days after the date on which a Federal credit instrument is obligated for the project under the BIFIA program.

If an eligible project is carried out by an entity that is not a State or local government or an agency or instrumentality of a State or local government or a Tribal Government or consortium of Tribal Governments, the project shall be publicly sponsored. For purposes of this chapter, a project shall be considered to be publicly sponsored if the obligor can demonstrate, to the satisfaction of the Assistant Secretary, that the project applicant has consulted with the State, local, or Tribal Government in the area in which the project is located, or that is otherwise affected by the project, and that such Government supports the proposal.

The Assistant Secretary shall establish a rolling application process under which projects that are eligible to receive credit assistance under subsection

(a)shall receive credit assistance on terms acceptable to the Assistant Secretary, if adequate funds are available to cover the subsidy costs associated with the Federal credit instrument. The Assistant Secretary shall require each project applicant to provide— a preliminary rating opinion letter from at least one rating agency— indicating that the senior obligations of the project, which may be the Federal credit instrument, have the potential to achieve an investment-grade rating; and including a preliminary rating opinion on the Federal credit instrument; or in the case of a small project, alternative documentation that the Assistant Secretary shall require in the standards established under section 31325 for purposes of this paragraph. In selecting projects to receive credit assistance under the BIFIA program, the Assistant Secretary may not favor a project using any particular technology. In selecting projects to receive credit assistance under the BIFIA program, the Assistant Secretary shall give preference to projects providing for the deployment of open-access broadband service networks. The following provisions of law shall apply to funds made available under the BIFIA program and projects assisted with those funds: Title VI of the Civil Rights Act of 1964 ( 42 U.S.C. 2000d et seq.). The National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.). 54 U.S.C. 300101 et seq. (commonly referred to as the National Historic Preservation Act ). The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 ( 42 U.S.C. 4601 et seq.). No funding shall be obligated for a project that has not received an environmental categorical exclusion, a finding of no significant impact, or a record of decision under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.). For purposes of title VI of the Civil Rights Act of 1964 ( 42 U.S.C. 2000d et seq.), any project that receives credit assistance under the BIFIA program shall be considered a program or activity within the meaning of section 606 of such title ( 42 U.S.C. 2000d–4a ). All laborers and mechanics employed by contractors or subcontractors in the performance of construction, alteration, or repair work carried out, in whole or in part, with assistance made available through a Federal credit instrument shall be paid wages at rates not less than those prevailing on projects of a similar character in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code. With respect to the labor standards in this paragraph, the Secretary of Labor shall have the authority and functions set forth in Reorganization Plan Numbered 14 of 1950 (64 Stat. 1267; 5 U.S.C. App.) and section 3145 of title 40, United States Code. An employer receiving assistance made available through a Federal credit instrument under this chapter shall remain neutral with respect to the exercise of employees and labor organizations of the right to organize and bargain under the National Labor Relations Act ( 29 U.S.C. 151 et seq.). The Assistant Secretary shall refer any alleged violation of an applicable labor and employment law to the appropriate Federal agency for investigation and enforcement, and any alleged violation of paragraph

(4)or

(5)to the National Labor Relations Board for investigation and enforcement, utilizing all appropriate remedies up to and including debarment from the BIFIA program. Not later than 30 days after the date of receipt of an application under this section, the Assistant Secretary shall provide to the applicant a written notice to inform the applicant whether— the application is complete; or additional information or materials are needed to complete the application. Not later than 60 days after the date of issuance of the written notice under paragraph (1), the Assistant Secretary shall provide to the applicant a written notice informing the applicant whether the Assistant Secretary has approved or disapproved the application. Subject to subsection (c)(2), an application for a project may be approved before the project receives an environmental categorical exclusion, a finding of no significant impact, or a record of decision under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.). Any credit instrument secured under the BIFIA program may be used to finance up to 100 percent of the cost of development phase activities as described in section 31321(3)(A).

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