80 FR 60950 - Draft Availability Payment Concessions Public-Private Partnership Model Contract Guide
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration Federal Register Volume 80, Issue 195 (October 8, 2015)
Federal Highway Administration
Federal Register Volume 80, Issue 195 (October 8, 2015)
| Page Range | 60950-60952 | |
| FR Document | 2015-25656 |
[Federal Register Volume 80, Number 195 (Thursday, October 8, 2015)] [Notices] [Pages 60950-60952] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-25656] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Highway Administration [Docket No. FHWA-2014-0006] Draft Availability Payment Concessions Public-Private Partnership Model Contract Guide AGENCY: Federal Highway Administration (FHWA), Department of Transportation (DOT). ACTION: Notice; request for comments. ----------------------------------------------------------------------- SUMMARY: On July 17, 2014, the President announced the Build America Investment Initiative, a government-wide effort to increase infrastructure investment and economic growth by engaging with state and local governments and private sector investors to encourage collaboration, expand the market for public-private partnerships (P3s) and put Federal credit programs to greater use. As part of that effort, the Presidential Memorandum tasked the U.S. [[Page 60951]] Department of Transportation (USDOT) to establish the Build America Transportation Investment Center (BATIC), a one-stop-shop for state and local governments, public and private developers and investors seeking to utilize innovative financing and P3s to deliver transportation projects. USDOT has made significant progress in its work to expand access to USDOT credit programs, spread innovation through tools that build capacity across the country, and deliver project-focused technical assistance to help high-impact projects develop plans, navigate Federal programs and requirements, and evaluate and pursue financing opportunities. This includes an effort to provide a range of technical assistance tools to project sponsors, including a series of model contract provisions for popular P3 project types. Development of these tools fulfills a requirement under Moving Ahead for Progress in the 21st Century Act (MAP-21) that FHWA to develop public-private partnership (P3) transaction model contracts for the most popular type of P3s for transportation projects. Based on public input favoring an educational, rather than prescriptive, contract model, FHWA is publishing a series of guides describing terms and conditions typically adopted in P3 concession agreements. The FHWA values public input in the development of the model contract guides, and seeks continuing input. All documents in this series share the same Docket Number (FHWA- 2014-0006). To address the most popular types of P3s, FHWA is producing separate guides to the two most common agreements for concessionaire compensation: user tolls and availability payments (APs). For the purpose of public comment, the Toll Concessions Guide was divided into two parts. The first part, addressing the highest profile (``Core'') provisions, was published in final form on September 10, 2014. The second part (the ``Addendum''), addressing additional substantive provisions, was published in draft form on January 16, 2015. As described below, FHWA is deferring publication of the final version of the Addendum in order to obtain public comment on additional material (provided with this announcement) relevant to the concessions guides. With this notice, FHWA publishes a Draft Availability Payment Concessions P3 Model Contract Guide (``AP Concessions Guide'') so that the general public and interested stakeholders may provide comments. The AP Concessions Guide can be found on the Docket (FHWA-2014-0006) and at the following link:http://www.fhwa.dot.gov/ipd/pdfs/p3/apguide.pdf. This model contract guide has been prepared solely for informational purposes and should not be construed as a statement of DOT or FHWA policy. In addition, a separate chapter on Labor Best Practices recommended by the U.S. Department of Labor has been added to the Docket and is available at the following link: http://www.fhwa.dot.gov/ipd/pdfs/p3/laborbestpractices.pdf. This chapter discusses labor provisions recommended by the U.S. Department of Labor for all P3 concession agreements, following a collaboration with USDOT, regardless of source of funding (i.e., Federal, State, or private) or form of compensation (i.e., user tolls or APs). The FHWA intends to incorporate this chapter into the final contract guides for both user toll and AP concessions; therefore, FHWA is seeking public comment on this document prior to finalizing the Toll Concession Addendum. DATES: Comments must be received on or before October 29, 2015. Late comments will be considered to the extent possible. ADDRESSES: To ensure that you do not duplicate your docket submissions, please submit them by only one of the following means:Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting comments. Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., W12-140, Washington, DC 20590-0001. Hand Delivery: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is (202) 366- 9329. Instructions: You must include the agency name and docket number at the beginning of your comments. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided. FOR FURTHER INFORMATION CONTACT: Mark Sullivan, Office of Innovative Program Delivery, (202) 366-5785, [email protected], Federal Highway Administration, 1200 New Jersey Avenue SE., Washington DC 20590, or Alla Shaw, Office of the Chief Counsel, (202) 366-1042, [email protected], Federal Highway Administration, 1200 New Jersey Avenue SE., Washington DC 20590. SUPPLEMENTARY INFORMATION: Electronic Access and Filing You may submit or retrieve comments online through the Federal eRulemaking portal at: http://www.regulations.gov. The Web site is available 24 hours every day of the year. Electronic submission and retrieval help and guidelines are available under the help section of the Web site. An electronic copy of this document may also be downloaded from the Office of the Federal Register's home page at: http://www.archives.gov/federal_register and the Government Printing Office's Web page at: http://www.gpoaccess.gov. Background P3s are contractual arrangements between public and private sector entities that allow for greater participation by the private sector in the delivery of surface transportation projects and associated services. Generally, in addition to designing or building a project, a private partner in a P3 may be involved in financing, operating and maintaining the project. By transferring certain risks and responsibilities to the private partner, P3s can result in more efficient and effective project delivery. However, P3 contracts are more complex and of a much longer duration than traditional construction contracts. Their terms and conditions address many non- traditional requirements, such as financing arrangements and performance during the lengthy concession period. Public agencies need expertise to negotiate P3 concession agreements successfully. Section 1534(d) of MAP-21 (Pub. L. 112-141; 126 Stat. 584) requires the DOT to develop P3 contracts that could serve as a model to States and other public transportation providers in developing their own P3 contracts. After considering written comments responding to a notice published at 78 FR 1918 on January 9, 2013, as well as those received during a Listening Session on January 16, 2013, FHWA chose to develop the model contracts as informational guides, rather than prescriptive templates, for State and local governments entering into P3 transactions. About the Availability Payment Concessions P3 Model Contract Guide The second most common P3 contract uses APs to compensate a concessionaire. In an AP concession, scheduled government appropriations provide periodic payment to the concessionaire during the term of the agreement, which is typically 30 to 40 years. Payments can be adjusted for [[Page 60952]] non-availability of the facility or for operational non-performance. Many provisions in AP contracts are similar to those in toll revenue contracts. The AP Concessions Guide focuses on issues critical to achieving public sector objectives and protecting the interest of the taxpaying and traveling public. The Draft AP Concessions Guide focuses on nineteen specific provisions. Unlike the Toll Concessions Guide, which for reasons of public comment was split into separate Core and Addendum sections, the AP Concessions Guide incorporates all provisions into a single document, with the following chapter headings: 1. Introduction 2. Completion Testing and Performance Security 3. Availability Requirements 4. Maintenance and Handback Requirements 5. Payment Mechanism, Performance Monitoring and Financial Model Adjustments 6. Insurance 7. Contract Term and Nature of the Proprietary Interest 8. Supervening Events 9. Change in Law 10. Department and Developer Changes 11. Assignment and Changes in Equity Interests 12. Defaults, Early Termination, and Termination Compensation 13. Indemnities 14. Federal Requirements 15. Amendment to Key Developer Documents 16. Lenders Rights and Direct Agreement 17. Department Step-In 18. Disputes 19. Intellectual Property 20. General Provisions The AP Guide Concessions Guide can be found on the Docket (FHWA- 2014-0006) and at the following link: http://www.fhwa.dot.gov/ipd/pdfs/p3/apguide.pdf. About the Labor Best Practices Recommendations Any project, including a P3 concession, that receives Federal assistance pursuant to title 23 of the United States Code, must comply with all Federal laws, including labor laws, pertaining to the use of Federal funds. However, as a best practice, the U.S. Department of Labor encourages parties to a P3 agreement to consider adopting labor practices that provide worker protections beyond those required by law. With this notice, FHWA is also publishing for public comment a separate chapter, authored by the U.S. Department of Labor, in collaboration with USDOT, on Labor Best Practices in P3 concessions. Because this chapter discusses issues applicable to both toll and AP concession contracts, FHWA will defer publication of the Final Toll Concessions P3 Model Contract Guide Addendum until receiving comments on this additional document. The Labor Best Practices chapter includes the following topics: Prevailing Wages and Fringe Benefits Employee Benefits Incumbent Worker Nondisplacement and Protections Workforce Development and Apprenticeship Workplace Health and Safety Wage and Classification Transparency Equal Employment Opportunity Project Labor Agreements Responsible Contractor Policy The Labor Best Practices chapter can be found on the Docket (FHWA- 2014-0006) and at the following link: http://www.fhwa.dot.gov/ipd/pdfs/p3/laborbestpractices.pdf. The FHWA intends to incorporate the Labor Best Practices chapter into both of its P3 concession guides. Upon conclusion of the public comment process, the final Toll Concessions Guide (combining the Core and Addendum provisions) and the final AP Concessions Guide will be posted on the FHWA Web site at http://www.fhwa.dot.gov/ipd/p3/. Authority: Section 1534(d) of Moving Ahead for Progress in the 21st Century, MAP-21, enacted Oct 1 2012. Issued on: September 21, 2015. Gregory G. Nadeau, Administrator, Federal Highway Administration. [FR Doc. 2015-25656 Filed 10-7-15; 8:45 am] BILLING CODE 4910-22-P
![60950 Federal Register / Vol. 80, No. 195 / Thursday, October 8, 2015 / Notices
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Ralen Gao, Office of Rulemaking, ARM– [FR Doc. 2015–25608 Filed 10–7–15; 8:45 am]
Thursday, October 29, 2015 209, FAA, 800 Independence Avenue BILLING CODE 4910–13–P
1. Welcome/Introductions/ SW., Washington, DC 20591, Telephone
Administrative Remarks (202) 267–3168, Fax (202) 267–5075, or
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Summary SUPPLEMENTARY INFORMATION: Pursuant
3. Report from the TSA to section 10(a)(2) of the Federal Federal Highway Administration
4. Report on Safe Skies on Document Advisory Committee Act (Pub. L. 92– [Docket No. FHWA–2014–0006]
Distribution 463; 5 U.S.C. app. III), notice is given of
5. Review of FRAC comments/ an ARAC meeting to be held November Draft Availability Payment
worksheet and committee 4, 2015. Concessions Public-Private
resolution of comments The agenda for the meeting is as Partnership Model Contract Guide
6. Approve release of DO–230 F to go to follows: AGENCY: Federal Highway
PMC • Opening Remarks, Review Agenda Administration (FHWA), Department of
7. Review of Other DO–230G Sections and Minutes Transportation (DOT).
8. Action Items for Next Meeting • FAA Report ACTION: Notice; request for comments.
9. Time and Place of Next Meeting • ARAC Report
10. Any Other Business • Transport Canada Report SUMMARY: On July 17, 2014, the
11. Adjourn • EASA Report President announced the Build America
Attendance is open to the interested • Engine HWG Report Investment Initiative, a government-
public but limited to space availability. • Airworthiness Assurance HWG wide effort to increase infrastructure
With the approval of the chairman, Report investment and economic growth by
• Flight Test HWG Report
mstockstill on DSK4VPTVN1PROD with NOTICES
members of the public may present oral engaging with state and local
statements at the meeting. Persons • Materials Flammability WG Report governments and private sector
wishing to present statements or obtain • Metallic and Composite Structures investors to encourage collaboration,
information should contact the person WG Report expand the market for public-private
listed in the FOR FURTHER INFORMATION • Crashworthiness and Ditching WG partnerships (P3s) and put Federal
CONTACT section. Members of the public Report credit programs to greater use. As part
may present a written statement to the • Any Other Business of that effort, the Presidential
committee at any time. • Action Item Review Memorandum tasked the U.S.
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![60952 Federal Register / Vol. 80, No. 195 / Thursday, October 8, 2015 / Notices
non-availability of the facility or for separate chapter, authored by the U.S. (SCRRA) submitted to FRA its Positive
operational non-performance. Many Department of Labor, in collaboration Train Control Safety Plan (PTCSP)
provisions in AP contracts are similar to with USDOT, on Labor Best Practices in Version 1.7 for approval under the
those in toll revenue contracts. P3 concessions. Because this chapter Federal railroad safety regulations in
The AP Concessions Guide focuses on discusses issues applicable to both toll Title 49 Code of Federal Regulations
issues critical to achieving public sector and AP concession contracts, FHWA (CFR) Part 236, Subpart I, Positive Train
objectives and protecting the interest of will defer publication of the Final Toll Control Systems. SCRRA asks FRA to
the taxpaying and traveling public. The Concessions P3 Model Contract Guide approve its PTCSP and to provide PTC
Draft AP Concessions Guide focuses on Addendum until receiving comments on System Certification for SCRRA’s
nineteen specific provisions. Unlike the this additional document. The Labor implementation of its Interoperable-
Toll Concessions Guide, which for Best Practices chapter includes the Electronic Train Management System
reasons of public comment was split following topics: (I–ETMS). In its PTCSP, SCRRA asserts
into separate Core and Addendum • Prevailing Wages and Fringe Benefits that its I–ETMS is designed as a vital
sections, the AP Concessions Guide • Employee Benefits overlay PTC system in compliance with
incorporates all provisions into a single • Incumbent Worker Nondisplacement the PTCSP requirements. The PTCSP
document, with the following chapter and Protections describes the SCRRA I–ETMS
headings: • Workforce Development and implementation and the associated I–
1. Introduction Apprenticeship ETMS safety processes; safety analyses;
2. Completion Testing and Performance • Workplace Health and Safety and test, validation, and verification
Security • Wage and Classification Transparency processes used during development of
3. Availability Requirements • Equal Employment Opportunity I–ETMS. The PTCSP also contains
4. Maintenance and Handback • Project Labor Agreements SCRRA operational and support
Requirements • Responsible Contractor Policy requirements and procedures.
5. Payment Mechanism, Performance SCCRA’s PTCSP and the
The Labor Best Practices chapter can
Monitoring and Financial Model accompanying request for approval are
be found on the Docket (FHWA–2014–
Adjustments available for review online at
0006) and at the following link: http://
6. Insurance www.regulations.gov (Docket No. FRA–
www.fhwa.dot.gov/ipd/pdfs/p3/
7. Contract Term and Nature of the 2010–0048) and in person at the U.S.
laborbestpractices.pdf.
Proprietary Interest The FHWA intends to incorporate the Department of Transportation’s (DOT)
8. Supervening Events Labor Best Practices chapter into both of Docket Operations Facility, 1200 New
9. Change in Law its P3 concession guides. Upon Jersey Avenue SE., W12–140,
10. Department and Developer Changes conclusion of the public comment Washington, DC 20590. The Docket
11. Assignment and Changes in Equity process, the final Toll Concessions Operations Facility is open from 9 a.m.
Interests Guide (combining the Core and to 5 p.m., Monday through Friday,
12. Defaults, Early Termination, and Addendum provisions) and the final AP except Federal Holidays.
Interested parties are invited to
Termination Compensation Concessions Guide will be posted on the
comment on the PTCSP by submitting
13. Indemnities FHWA Web site at http://
written comments or data. During its
14. Federal Requirements www.fhwa.dot.gov/ipd/p3/.
review of the PTCSP, FRA will consider
15. Amendment to Key Developer Authority: Section 1534(d) of Moving any comments or data submitted.
Documents Ahead for Progress in the 21st Century, However, FRA may not respond to any
16. Lenders Rights and Direct MAP–21, enacted Oct 1 2012. comment and, under 49 CFR
Agreement
Issued on: September 21, 2015. 236.1009(d)(3), FRA maintains the
17. Department Step-In
Gregory G. Nadeau, authority to approve or disapprove the
18. Disputes
Administrator, Federal Highway PTCSP at its sole discretion. FRA does
19. Intellectual Property
Administration. not anticipate scheduling a public
20. General Provisions
[FR Doc. 2015–25656 Filed 10–7–15; 8:45 am] hearing regarding these proceedings
The AP Guide Concessions Guide can because the facts do not appear to
BILLING CODE 4910–22–P
be found on the Docket (FHWA–2014– warrant a hearing. If any interested
0006) and at the following link: http:// party desires an opportunity for oral
www.fhwa.dot.gov/ipd/pdfs/p3/ DEPARTMENT OF TRANSPORTATION comment, they should notify FRA in
apguide.pdf. writing before the end of the comment
About the Labor Best Practices Federal Railroad Administration period and specify the basis for their
Recommendations [Docket No. FRA–2010–0048] request.
Any project, including a P3 DATES: FRA will consider
Positive Train Control Safety Plan for communications received by January 6,
concession, that receives Federal
the Southern California Regional Rail 2016 before taking final action on the
assistance pursuant to title 23 of the
Authority PTCSP. Comments received after that
United States Code, must comply with
all Federal laws, including labor laws, AGENCY: Federal Railroad date will be considered as far as
pertaining to the use of Federal funds. Administration (FRA), Department of practicable.
mstockstill on DSK4VPTVN1PROD with NOTICES
However, as a best practice, the U.S. Transportation (DOT). ADDRESSES: All communications
Department of Labor encourages parties ACTION: Notice of availability and concerning these proceedings should
to a P3 agreement to consider adopting request for comments. identify the appropriate docket number
labor practices that provide worker and may be submitted by any of the
protections beyond those required by SUMMARY: This document provides the following methods:
law. public notice that by a document dated • Web site: http://
With this notice, FHWA is also September 19, 2015, the Southern www.regulations.gov. Follow the online
publishing for public comment a California Regional Rail Authority instructions for submitting comments.
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Document Created: 2015-12-15 08:42:48
Document Modified: 2015-12-15 08:42:48
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice; request for comments. | |
| Dates | Comments must be received on or before October 29, 2015. Late comments will be considered to the extent possible. | |
| Contact | Mark Sullivan, Office of Innovative Program Delivery, (202) 366-5785, [email protected], Federal Highway Administration, 1200 New Jersey Avenue SE., Washington DC 20590, or Alla Shaw, Office of the Chief Counsel, (202) 366-1042, [email protected], Federal Highway Administration, 1200 New Jersey Avenue SE., Washington DC 20590. | |
| FR Citation | 80 FR 60950 |
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