[Federal Register Volume 65, Number 139 (Wednesday, July 19, 2000)]
[Rules and Regulations]
[Pages 44936-44940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-18314]



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Part V





Department of Transportation





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Office of the Secretary



Federal Highway Administration



Federal Railroad Administration



Federal Transit Administration



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49 CFR Part 80



Credit Assistance for Surface Transportation Projects; Final Rule



Applications for TIFIA Credit Assistance; Notice

  Federal Register / Vol. 65, No. 139 / Wednesday, July 19, 2000 / 
Rules and Regulations  

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary of Transportation

49 CFR Part 80

[OST Docket No. OST-2000-7401]
RIN 2105-AC87


Credit Assistance for Surface Transportation Projects

AGENCY: Office of the Secretary, Department of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: The Department of Transportation (DOT) continues to implement 
the Transportation Infrastructure Finance and Innovation Act of 1998 
(TIFIA), under which the DOT may provide secured (direct) loans, lines 
of credit, and loan guarantees to public and private sponsors of 
eligible surface transportation projects. The DOT published original 
implementing regulations for the TIFIA on June 2, 1999. With this rule, 
the DOT revises certain of these prior regulations, as codified within 
49 CFR Part 80, as follows: clarifies that funds will be disbursed 
based on the project's anticipated financing needs; clarifies that the 
borrower must obtain ongoing credit surveillance for the life of the 
TIFIA credit instrument; assigns specific weights to each of the eight 
statutory selection criteria; specifies that loan servicing fees are to 
be paid by the borrower; modifies the time period for audited financial 
statements from 120 days to within no more than 180 days; and provides 
that administrative offsets will be employed only in cases of fraud, 
misrepresentation, or criminal acts, and will not be employed as a 
result of revenue shortfalls.

EFFECTIVE DATE: This final rule is effective August 18, 2000.

FOR FURTHER INFORMATION CONTACT:  
    FHWA: Mr. Max Inman, Office of Budget and Finance, Federal-Aid 
Financial Management Division, (202) 366-0673; or Mr. Steven M. 
Rochlis, Office of the Chief Counsel, (202) 366-1395. FRA: Ms. JoAnne 
McGowan, Office of Passenger and Freight Services, Freight Program 
Division, (202) 493-6390; or Mr. Joseph Pomponio, Office of the Chief 
Counsel, (202) 493-6051. FTA: Mr. Paul Marx, Office of Policy 
Development, (202) 366-1675; or Ms. Paula Schwach, Office of the Chief 
Counsel, (816) 523-0204. OST: Ms. Stephanie Kaufman, Office of Budget 
and Program Performance, (202) 366-9649; or Mr. Terence W. Carlson, 
Office of the General Counsel, (202) 366-9161. Department of 
Transportation, 400 Seventh Street, SW, Washington, DC, 20590. Office 
hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, 
except Federal holidays. Hearing-and speech-impaired persons may access 
this number via TTY by calling the Federal Information Relay Service at 
1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users may access all comments received by the U.S. DOT 
Dockets by using the universal resource locator (URL) http://dms.dot.gov. It is available 24 hours each day, 365 days each year. 
Please follow the instructions on-line for more information and help. 
An electronic copy of this document may be downloaded using a modem and 
suitable communications software from the Government Printing Office's 
Electronic Bulletin Board Service at (202) 512-1661. Internet users may 
reach the Office of the Federal Register's home page at http://www.nara.gov/fedreg and the Government Printing Office's web page at 
http://www.access.gpo.gov/nara.
    Additional general information on the TIFIA program and credit 
assistance for surface transportation projects is available on the 
TIFIA web site at http://tifia.fhwa.dot.gov.

Background

    The Transportation Equity Act for the 21st Century (TEA-21), Public 
Law 105-178, 112 Stat. 107, created the TIFIA. The TIFIA, as amended by 
section 9007, Public Law 105-206, 112 Stat. 685, 849 and codified at 23 
U.S.C. 181-189, authorizes the DOT to provide credit assistance in the 
form of secured (direct) loans, lines of credit, and loan guarantees to 
public and private sponsors of eligible surface transportation 
projects. Regulations governing the TIFIA program appear at 49 CFR Part 
80 and provide specific guidance on the program requirements. For 
additional information, the TIFIA Program Guide is available from the 
TIFIA website (http://tifia.fhwa.dot.gov).
    The TIFIA authorizes annual levels for both credit assistance (as 
measured by the principal amounts of the secured loans, guaranteed 
loans, or lines of credit) and subsidy amounts (i.e., the amounts of 
budget authority available to cover the estimated present value of the 
Government's expected losses associated with the provision of credit 
instruments, net of any fee income). Funding for the subsidy amounts is 
provided in the form of budget authority appropriated from the Highway 
Trust Fund, other than the Mass Transit Account. Both funding (budget 
authority) and credit assistance authority for this program are 
limited, so projects seeking assistance are evaluated and selected by 
the DOT on a competitive basis. Following selections, term sheets are 
issued and credit agreements are developed through negotiations between 
the project sponsors and the DOT.
    Total Federal credit assistance amounts authorized for the TIFIA 
program are $1.8 billion in FY 2000; $2.2 billion in FY 2001; $2.4 
billion in FY 2002; and $2.6 billion in FY 2003. These amounts lapse if 
they are not awarded by the end of the fiscal year for which they are 
provided. To support these credit assistance amounts, the TIFIA 
provides budget authority to fund the required subsidy amounts of $90 
million in FY 2000; $110 million in FY 2001; $120 million in FY 2002; 
and $130 million in FY 2003. Of these amounts, the Secretary may use up 
to $2 million for each of the fiscal years for administrative expenses. 
Any budget authority that is not obligated in the fiscal year for which 
it is authorized remains available for obligation in subsequent years.
    The TIFIA budget authority is subject to an annual obligation 
limitation that may be established in appropriations law. Like the 
funding for certain other administrative or allocated programs (not 
apportioned to the States) that are subject to the annual Federal-aid 
highway obligation limitation, the amount of TIFIA budget authority 
that is available to fund credit instruments in a given year may be 
less than the amount originally authorized for that year. The extent of 
any budget authority reduction will depend on the ratio of the 
obligation limitation, which is determined annually in the 
appropriations process, to the contract authority for the Federal-aid 
highway program, which was established in TEA-21. For FY 2000, this 
reduction is 12.9 percent, or $11.6 million. The credit assistance 
amounts authorized in the TIFIA are not subject to this annual 
reduction.
    The DOT expects that approximately $81 million in net budget 
authority will be available in FY 2000 to fund the TIFIA credit 
assistance program. This approximation takes into account unused FY 
1999 budget authority, the reduction in FY 2000 budget authority due to 
the annual obligation limitation, and administrative expenses 
authorized by the TIFIA statute. The amount of net budget authority 
available for new TIFIA commitments in FY 2000 may also be affected by 
credit subsidy

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adjustments to obligations for prior TIFIA commitments.
    The total amount of Federal credit assistance available for new 
TIFIA commitments in FY 2000 is approximately $1.673 billion, which is 
less than the $1.8 billion authorization level as a result of TIFIA 
contingent commitments made in FY 1999. The size of the annual TIFIA 
program may be limited by either budget authority or credit assistance 
authorization, depending on the risk assessments made for individual 
projects selected for that fiscal year's program.

Credit Instruments

    Three types of credit instruments are permitted under the TIFIA: 
secured (direct) loans, loan guarantees, and lines of credit, as 
provided for generally at 23 U.S.C. 183 and 184. More specific terms 
for individual projects will be determined during negotiations between 
the DOT and successful applicants.

Eligible Projects

    Highway, rail, transit, and intermodal projects may receive credit 
assistance under the TIFIA. See the definition of ``project'' in 23 
U.S.C. 181(9) and 49 CFR 80.3 for a description of eligible projects.

Threshold Criteria

    Certain threshold criteria must be met by projects seeking TIFIA 
assistance. These eligibility criteria are detailed in 23 U.S.C. 182(a) 
and 49 CFR 80.13.

Limitations on Assistance

    The amount of credit assistance that the DOT may provide to a 
project under the TIFIA is limited to not more than 33 percent of 
eligible project costs.

Rating Opinions

    A project sponsor must submit a preliminary rating opinion letter 
from one or more of the nationally recognized credit rating agencies 
with its application, as detailed in 23 U.S.C. 182(b)(2)(B) and 49 CFR 
80.11. The preliminary rating opinion letter will confirm the potential 
for the project's senior debt obligations to achieve an investment 
grade rating and provide an assessment of the default risk on the 
requested TIFIA credit instrument. Projects selected for TIFIA credit 
assistance must obtain an investment grade rating on the senior debt 
obligations and a revised opinion of the default risk on the TIFIA 
credit instrument before the DOT will execute a credit agreement and 
disburse funds.

Application Process

    Detailed application information is contained in the TIFIA Program 
Guide and the TIFIA Application for Federal Credit Assistance, which 
are posted on the TIFIA web site at http://tifia.fhwa.dot.gov or which 
may be obtained through one of the DOT program contacts listed in this 
notice. From time to time, the TIFIA Program Guide and Application may 
be revised. Applicants are encouraged to refer to the TIFIA web site or 
to TIFIA program contacts for information regarding recent program 
clarifications.

Fees

    The DOT requires payment of a non-refundable fee with each credit 
assistance application under the TIFIA. For FY 2000, the DOT will 
assess an application fee of $5,000 for each project applying for 
credit assistance; however, there will be no additional credit 
processing fee for FY 2000. For fiscal years 2001 and beyond, the DOT 
may adjust the amount of the application fee and will determine the 
appropriate amount of any potential credit processing fee or any other 
fee based on program implementation experience. The DOT will publish 
these amounts in each Federal Register solicitation for applications.

NPRM

    The DOT published a notice of proposed rulemaking (NPRM) on May 30, 
2000, in the Federal Register (65 FR 34428). Comments were filed by the 
Florida Department of Transportation, Scully Capital Services Inc., and 
the Washington State Department of Transportation. The DOT is now 
issuing this final rule concerning administration of the TIFIA credit 
assistance program. This rule reflects the DOT's consideration of the 
comments filed in response to the NPRM.

Discussion of Rulemaking Text

    The following discussion summarizes the comments submitted to the 
DOT by the three commenters on the NPRM, notes where and why changes 
have been made to the rule, and, where relevant, states why particular 
recommendations or suggestions have not been incorporated into the 
following regulations.

Discussion of Comments and Responses by Section

Section 80.5  Limitations on Assistance

    Section 80.5(g). One of the commenters voiced concern about the 
DOT's intent to establish the timing of loan disbursements in the 
credit agreement. The commenter indicated its supposition that the 
motivation for the language appearing in Section 80.5(g) was to 
preclude cash advances to project sponsors that would subsequently bank 
and earn interest on the funds. The commenter suggested that the 
section be modified to allow for changes to project schedules after 
execution of the credit agreement. Further, the commenter recommended 
that it may be more appropriate for the credit agreement to include a 
tentative funding schedule, a set of conditions necessary to modify the 
schedule, and a review process for parties to approve modifications to 
the credit agreement.
    DOT Response: The commenter's characterization of the primary 
intent of section 80.5(g)--namely, to prevent circumstances in which a 
sponsor would request that the DOT advance all cash up front, 
irrespective of the project's actual funding requirements, so that the 
sponsor could bank the proceeds--is accurate. To this end, the DOT 
drafted Section 80.5 to specify that the credit agreement shall 
indicate scheduled disbursements that align with the project's actual 
needs. Nothing in the proposed language states or implies that the 
schedule of disbursements appearing in the credit agreement is 
permanently fixed, and in practice, the DOT will implement the section 
much as the commenter has suggested. To underscore the flexibility 
necessary to respond to a particular project's funding requirements, 
the DOT has modified the language in this section.

Section 80.11  Investment-Grade Ratings

    Section 80.11(a). One commenter stated that the DOT should not rely 
on a senior debt rating (as an indicator of the TIFIA instrument's 
credit quality) if that rating is based on a revenue source that is 
unrelated to or of a materially different credit quality from the 
revenue source that will repay the TIFIA instrument. The commenter 
suggested that the rule clarify whether the senior debt rating is 
related to (i.e., based on) the source of funds that will repay the 
TIFIA instrument.
    DOT Response: The DOT agrees with the commenter's point that an 
investment-grade rating on a project's senior obligations is not a 
meaningful indicator of a TIFIA obligation's creditworthiness if the 
two sets of obligations are backed by different sources of repayment. 
The DOT believes that the proposed language, which defines senior 
obligations as those which have ``a lien senior to that of the TIFIA 
credit instrument on the pledged security,'' underscores this point, 
and

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the DOT will interpret the language appearing in section 80.11(a) as 
such.
    Section 80.11(b). Three commenters voiced concern regarding the 
DOT's proposal to require project sponsors to provide the DOT with an 
investment-grade rating not only prior to the execution and initial 
funding of a credit agreement but also prior to each subsequent draw on 
the credit instrument.
    DOT Response: Upon review of statutory language appearing in the 
TIFIA and comments to the NPRM, the DOT concurs with the comments. 
Accordingly, relevant language proposed under the NPRM has been 
dropped, and section 80.11(b) of 49 CFR remains unchanged.
    Section 80.11(d). Two commenters responded to section 80.11(d) but 
offered differing views. One commenter linked its approval for this 
section to its objection to the proposed Section 80.11(b), stating that 
ongoing credit surveillance would obviate the need for a project 
sponsor to provide a new investment grade rating prior to each 
disbursement of funds. This commenter also stated that project sponsors 
are prepared to fund on-going surveillance on an annual basis, 
described the practice as normal and customary, and indicated that this 
action would cost significantly less than updating the debt rating 
prior to each loan disbursement. In contrast, another commenter stated 
that rating agencies already monitor the creditworthiness of the issues 
they rate on an ongoing basis and of their own accord. In this 
commenter's opinion, the DOT's requirement for project sponsors to pay 
for this service throughout the life of a TIFIA credit agreement was 
unnecessary.
    DOT Response: The commenters appear to have differing views on what 
services rating agencies provide on a fee basis. It is not the DOT's 
role to advise project sponsors what services ought or ought not be 
provided by rating agencies and at what cost. Rather, section 80.11(d) 
is intended to make two points: First, that recipients of TIFIA credit 
assistance must furnish information deriving from ongoing credit 
surveillance of all debt obligations (including the TIFIA instrument) 
throughout the life of the TIFIA instrument; and second, that this 
information is to be provided by the project sponsor at no cost to the 
Federal Government. To underscore these points and avoid any 
implications regarding the costs of credit surveillance services, the 
DOT has modified this section as follows: ``The project sponsor must 
annually provide, at no cost to the Federal Government, ongoing credit 
evaluations of the project and related debt obligations, including an 
annual assessment of the TIFIA credit instrument. The evaluations are 
to be performed by a nationally recognized credit rating agency and 
provided to the DOT throughout the life of the TIFIA credit instrument. 
In addition, the project sponsor will furnish the DOT with any other 
credit surveillance reports on the TIFIA-assisted project as soon as 
they are available.''

Section 80.15  Selection Criteria

    Section 80.15. Two commenters addressed the DOT's proposed 
weighting of project selection criteria. Both commenters specifically 
suggested that the DOT reduce the proposed weight of 20 percent for the 
criterion concerning the extent to which the project helps maintain or 
protect the environment.
    One commenter expressed concern that the proposed weighting of the 
environmental criterion unfairly favors projects that are environmental 
in nature, and therefore alters the ultimate purpose and goals of the 
TIFIA program. This commenter also drew a parallel between the criteria 
related to creditworthiness and environmental impacts, noting that the 
DOT proposed a weighting of 12.5 percent for creditworthiness given 
that obligations of TIFIA credit assistance are conditioned on a 
preliminary rating opinion letter, and that similarly, the DOT should 
set a lower weight for the environmental criterion given that 
obligations are also to be conditioned on projects having received an 
environmental Categorical Exclusion, Finding of No Significant Impact, 
or Record of Decision.
    The other commenter suggested that weightings be dropped 
altogether, or alternatively, that the weights assigned to both 
creditworthiness and the use of new technologies (such as intelligent 
transportation systems) be elevated.
    DOT Response: The DOT disagrees with the commenters and believes 
that the proposed weights properly reflect the program's goals, will 
maximize the effectiveness of the program's credit assistance, and are 
consistent with the DOT's overall strategic and performance goals. In 
special regard to the comparison between creditworthiness and 
environmental benefits, the DOT believes that the parallel drawn by the 
first commenter is not accurate. While the DOT is highly concerned with 
a project's capacity to repay the TIFIA instrument, the Department also 
recognizes that a project with very high creditworthiness is probably 
one that could advance without any credit assistance whatsoever, and 
thus might not represent the best use of limited TIFIA funds. In 
contrast, projects with very high environmental benefits, balanced with 
other attributes, almost always represent a desirable Federal 
investment. The system of weights appearing in this rule affirms the 
DOT's view that the evaluation process should and will support projects 
that maintain or improve the environment.

Section 80.19  Reporting Requirements

    Section 80.19. One commenter suggested that the 180-day financial 
reporting period is unusually long for commercial practice and renders 
the statement six months from the period to which it pertains.
    DOT Response: While eager to gather financial information that is 
as current as possible, the DOT recognizes that 180 days is the 
reporting period recommended by the Government Finance Officers 
Association. To balance the desire for timely information with a 
recognition that some governmental borrowers have had difficulty 
meeting the 120-day reporting period, the DOT has modified the language 
in this rule to state that audited financial statements must be 
furnished to the DOT within no more than 180 days.

Section 80.21  Use of Administrative Offset

    Section 80.21. One commenter approved the proposed clarification 
that administrative offsets will be employed only in cases of fraud, 
misrepresentation, false claims, or similar criminal acts or acts of 
malfeasance and wrongdoing, and will not be employed as a result of 
revenue shortfalls.

General Comments

    One commenter requested clarification as to whether this rule 
applies to the applications solicited under the Notice of Funds 
Availability (NOFA) published in the Federal Register on May 10, 2000 
(Vol. 65, No. 91).
    DOT Response: As stated explicitly in the NOFA, ``the Final Rule as 
published in the Federal Register on June 2, 1999 remains applicable to 
this notice [published May 10, 2000].'' The DOT re-emphasizes that the 
modifications to the rule will apply only to future application cycles 
occurring after the effective date of this rule.

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Executive Order 12866 (Regulatory Planning And Review) and DOT 
Regulatory Policies and Procedures

    The DOT has determined that issuance of a rule is necessary to 
implement the TIFIA, and has concluded that this action does not 
represent a ``significant regulatory action'' within the meaning of 
DOT's Regulatory Policies and Procedures (44 FR 11034, February 26, 
1979) and Executive Order 12866.
    This regulation would affect only those entities that voluntarily 
elect to apply for TIFIA assistance and are selected to receive 
assistance through a Federal credit instrument. It would not impose any 
direct involuntary costs on non-participants.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (Public Law 96-354, 5 U.S.C. 
601-612) requires an assessment of the extent to which proposed rules 
will have an impact on small business or other small entities. 
Consistent with the Regulatory Flexibility Act, the DOT has evaluated 
the effects of this rule on small business or other small entities. The 
DOT hereby certifies that this action would not have significant 
economic impact on a substantial number of small entities because this 
rule simply clarifies or makes minor modifications to the TIFIA credit 
assistance program.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Public Law 104-4) 
requires agencies to prepare a written assessment of the costs, 
benefits and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local or 
tribal governments, in the aggregate, or by the private sector, of more 
than $100 million annually. This rule would not impose a Federal 
mandate resulting in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any one year. Rather, this rule clarifies certain 
provisions of a Federal credit assistance program.

Executive Order 12372 (Intergovernmental Review)

    Given that projects receiving assistance under the TIFIA may fall 
under the programmatic jurisdiction of the Federal Highway 
Administration, the Federal Railroad Administration, or the Federal 
Transit Administration, the relevant Catalog of Federal Domestic 
Assistance Program Numbers are: 20.205 highway planning and 
construction; 20.310 rail rehabilitation and improvement; and 20.500 
transit capital improvement grants. The regulations implementing 
Executive Order 12372 regarding intergovernmental consultation on 
Federal programs and activities apply to this program.

Paperwork Reduction Act

    This document does not contain information collection requirements 
for the purposes of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

National Environmental Policy Act

    As specified under section 1503 of the TIFIA, and codified under 
section 182(c)(2) of title 23, U.S.C., each project obtaining 
assistance under this program is required to adhere to the National 
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.). 
This rulemaking simply proposes to clarify the procedures to apply for 
credit assistance and therefore, by itself, will not have any effect on 
the quality of the environment.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 dated August 4, 1999, and 
it has been determined this action does not have substantial direct 
effect or sufficient federalism implications on States that would limit 
the policy-making discretion of the States. Nothing in this document 
directly preempts any State law or regulation.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in section 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    The DOT has analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and does not 
concern any environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document may be used to cross-reference this action with the 
Unified Agenda.

List of Subjects in 49 CFR Part 80

    Credit programs--transportation, Highways and roads, Mass transit, 
Railroads, Investments, Reporting and recordkeeping requirements.

    For reasons set forth in the preamble, the Office of the Secretary 
of Transportation amends 49 CFR part 80 as follows:

PART 80--[AMENDED]

    1. The authority citation for part 80 continues to read as follows:

    Authority: Secs. 1501 et seq., Pub.L. 105-178, 112 Stat. 107, 
241, as amended; 23 U.S.C. 181-189 and 315; 49 CFR 1.48, 1.49, and 
1.51.

    2. Amend Sec. 80.3 by adding the definition ``administrative 
offset'' and by placing it in alphabetical order to read as follows:


Sec. 80.3  Definitions.

* * * * *
    Administrative offset means the right of the government to apply 
moneys held by the government and otherwise owed to a debtor for the 
extinguishment of claims due the government from the debtor.
* * * * *

    3. Add Sec. 80.5(g) to read as follows:


Sec. 80.5  Limitations on assistance.

* * * * *
    (g) The Secretary shall fund a secured loan based on the project's 
financing needs. The credit agreement shall include the anticipated 
schedule for such loan disbursements.
    4. In Sec. 80.11 revise paragraph (a) and add paragraph (d) to read 
as follows:


Sec. 80.11  Investment-grade ratings.

    (a) At the time a project sponsor submits an application, the DOT 
shall require a preliminary rating opinion letter. This letter is a 
conditional credit assessment from a nationally recognized credit 
rating agency that provides a preliminary indication of the project's 
overall creditworthiness and that specifically addresses the potential 
of

[[Page 44940]]

the project's senior debt obligations (those obligations having a lien 
senior to that of the TIFIA credit instrument on the pledged security) 
to achieve an investment-grade rating.
* * * * *
    (d) The project sponsor must annually provide, at no cost to the 
Federal Government, ongoing credit evaluations of the project and 
related debt obligations, including an annual assessment of the TIFIA 
credit instrument. The evaluations are to be performed by a nationally 
recognized credit rating agency and provided to the DOT throughout the 
life of the TIFIA credit instrument. In addition, the project sponsor 
will furnish the DOT with any other credit surveillance reports on the 
TIFIA-assisted project as soon as they are available.
* * * * *

    5. Amend Sec. 80.15 by revising paragraph (a) set forth below; by 
removing paragraphs (c) and (d); and by redesignating paragraph (e) as 
paragraph (c).


Sec. 80.15  Selection criteria.

    (a) The Secretary shall assign weights as indicated to the 
following eight selection criteria in evaluating and selecting among 
eligible projects to receive credit assistance:
    (1) The extent to which the project is nationally or regionally 
significant, in terms of generating economic benefits, supporting 
international commerce, or otherwise enhancing the national 
transportation system (20 percent);
    (2) The creditworthiness of the project, including a determination 
by the Secretary that any financing for the project has appropriate 
security features, such as a rate covenant, to ensure repayment (12.5 
percent);
    (3) The extent to which such assistance would foster innovative 
public-private partnerships and attract private debt or equity 
investment (20 percent);
    (4) The likelihood that such assistance would enable the project to 
proceed at an earlier date than the project would otherwise be able to 
proceed (12.5 percent);
    (5) The extent to which the project uses new technologies, 
including Intelligent Transportation Systems (ITS), that enhance the 
efficiency of the project (5 percent);
    (6) The amount of budget authority required to fund the Federal 
credit instrument made available (5 percent);
    (7) The extent to which the project helps maintain or protect the 
environment (20 percent); and
    (8) The extent to which such assistance would reduce the 
contribution of Federal grant assistance to the project (5 percent).
* * * * *

    6. Revise Sec. 80.17 to read as follows:


Sec. 80.17  Fees.

    (a) The DOT will require a non-refundable application fee for each 
project applying for credit assistance under the TIFIA. The DOT may 
also require an additional credit processing fee for projects selected 
to receive TIFIA assistance. Any required application initiation or 
credit processing fee must be paid by the project sponsor applying for 
TIFIA assistance and cannot be paid by another party on behalf of the 
project sponsor. The proceeds of any such fees will equal a portion of 
the costs to the Federal Government of soliciting and evaluating 
applications, selecting projects to receive assistance, and negotiating 
credit agreements. For FY 2000, the DOT will require payment of a fee 
of $5,000 for each project applying for credit assistance under the 
TIFIA, to be submitted concurrently with the formal application. The 
DOT will not impose any credit processing fees for FY 2000. For each 
application and approval cycle in FY 2001 and beyond, the DOT may 
adjust the amount of the application fee and will determine the 
appropriate amount of the credit processing fee based on program 
implementation experience. The DOT will publish these amounts in each 
Federal Register solicitation for applications.
    (b) Applicants shall not include application initiation or credit 
processing fees or any other expenses associated with the application 
process (such as fees associated with obtaining the required 
preliminary rating opinion letter) among eligible project costs for the 
purpose of calculating the maximum 33 percent credit amount referenced 
in Sec. 80.5(a).
    (c) If, in any given year, there is insufficient budget authority 
to fund the credit instrument for a qualified project that has been 
selected to receive assistance under TIFIA, the DOT and the approved 
applicant may agree upon a supplemental fee to be paid by or on behalf 
of the approved applicant at the time of execution of the term sheet to 
reduce the subsidy cost of that project. No such fee may be included 
among eligible project costs for the purpose of calculating the maximum 
33 percent credit amount referenced in Sec. 80.5(a).
    (d) The DOT will require borrowers to pay servicing fees for each 
credit instrument approved for funding. Separate fees may apply for 
each type of credit instrument (e.g., a loan guarantee, a secured loan 
with a single disbursement, a secured loan with multiple disbursements, 
or a line of credit), depending on the costs of servicing the credit 
instrument as determined by the Secretary. Such fees will be set at a 
level to enable the DOT to recover all or a portion of the costs to the 
Federal Government of TIFIA credit instruments.

    7. Revise Sec. 80.19 to read as follows:


Sec. 80.19  Reporting requirements.

    At a minimum, any recipient of Federal credit assistance under this 
part shall submit an annual project performance report and audited 
financial statements to the DOT within no more than 180 days following 
the recipient's fiscal year-end for each year during which the 
recipient's obligation to the Federal Government remains in effect. The 
DOT may conduct periodic financial and compliance audits of the 
recipient of credit assistance, as determined necessary by the DOT. The 
specific credit agreement between the recipient of credit assistance 
and the DOT may contain additional reporting requirements.

    8. Add Sec. 80.21 to read as follows:


Sec. 80.21  Use of administrative offset.

    The DOT will not apply an administrative offset to recover any 
losses to the Federal Government resulting from project risk the DOT 
has assumed under a TIFIA credit instrument. The DOT may, however, use 
an administrative offset in cases of fraud, misrepresentation, false 
claims, or similar criminal acts or acts of malfeasance or wrongdoing.

    Issued this 14th day of July, 2000 at Washington, D.C.
Rodney E. Slater,
Secretary of Transportation.
[FR Doc. 00-18314 Filed 7-18-00; 8:45 am]
BILLING CODE 4910-62-P