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###### Department of Transportation

###### Federal Highway Administration 

          - [Docket No. FHWA-2008-0128] 

# AGENCIES:

Federal Highway Administration (FHWA), (DOT). 

# ACTION:

Announcement of template term sheet and template loan agreement for an expedited TIFIA loan process; notice and request for comments. 

# SUMMARY:

                        In order to more efficiently facilitate innovative financing transactions, the DOT intends to develop an expedited process for                               ( print page 54199)                            execution of TIFIA loans for certain eligible highway projects developed pursuant to concession agreements with senior bank and/or bond debt facilities. To the extent applicants choose to take advantage of the expedited process, utilizing standardized documents and terms, as well as meet standard closing conditions, the DOT will commit to execute a final loan agreement within 45 days of the applicant's agreement to all of the terms and conditions contained in a template term sheet and a template loan agreement, drafts of which are published for comment on the docket for this notice and at the TIFIA Web site listed below. In addition, the DOT seeks comment regarding which term sheet and loan terms would need to be amended to provide an expedited process and which terms need to be amended for eligible transit projects developed pursuant to concession agreements.                     

# DATES:

Comments must be received on or before October 20, 2008. 

# ADDRESSES:

                        The template term sheet and template loan agreement for the expedited TIFIA loan process which are the subject of this notice can be viewed electronically at the docket established for this rulemaking at                         *http://www.regulations.gov*                         or on the TIFIA Web site at                         *http://tifia.fhwa.dot.gov*. Hard copies of the documents will also be available for viewing at the DOT address listed below.                     

                        Mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, or submit comments electronically at                         *http://www.regulations.gov*, or fax comments to (202) 493-2251. Alternatively, comments may be submitted via the Federal eRulemaking Portal at                         *http://www.regulations.gov*                         (follow the on-line instructions for submitting comments). All comments should include the docket number that appears in the heading of this document. All comments received will be available for examination and copying at the above address from 9 a.m. to 5 p.m.,                         *e.t.*, Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped postcard or you may print the acknowledgment page that appears after submitting comments electronically. All comments received into any docket may be searched in electronic format by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). Persons making comments may review DOT's complete Privacy Act Statement in the                         **Federal Register**                         published on April 11, 2000 (Volume 65, Number 70, Pages 19477-78), or you may view the statement at                         *http://dms.dot.gov*.                     

# FOR FURTHER INFORMATION CONTACT:

                        Mr. Mark Sullivan, TIFIA Joint Program Office (202) 366-5785, Mr. Marcus J. Lemon, Chief Counsel (202) 366-0740, or Mr. Steven Rochlis, Office of the Chief Counsel (202) 366-1395, Federal Highway Administration; 1200 New Jersey Avenue, SE., Washington, DC 20590. Office hours for the FHWA are from 7:45 a.m. to 4:15 p.m.,                         *e.t.*, Monday through Friday, except Federal holidays.                     

# SUPPLEMENTARY INFORMATION:

## Electronic Access and Filing 

                    You may submit or retrieve comments online through the Federal eRulemaking portal at:                     *www.regulations.gov*. The Web site is available 24 hours each day, 365 days each 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 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 

TIFIA was enacted in 1998 as part of the Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, June 1998). TIFIA established a Federal credit program which provides Federal credit assistance to major surface transportation projects of regional or national significance. In 1999, the DOT promulgated a rule implementing TIFIA (64 FR 29742, June 2, 1999), and amended the rule in 2000 (65 FR 44936, July 19, 2000). Subsequently, in 2005, Congress enacted the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, Aug. 10, 2005), which made a number of amendments to TIFIA.

In enacting the original TIFIA legislation, Congress found that “a well-developed system of transportation infrastructure is critical” to the nation's economy, and it sought to “attract new investment capital” to transportation infrastructure projects. Congress further found that TIFIA could complement existing funding resources by filling “market gaps,” thereby leveraging substantial private co-investment. 

To date, the DOT has provided almost $4.8 billion in TIFIA credit assistance to 15 projects representing almost $18.6 billion of infrastructure investment. Four TIFIA loans, including the three most recent TIFIA loans, have been executed with private companies for eligible highway projects developed pursuant to concession agreements with a public entity. In addition, TIFIA has recently experienced a sharp growth in demand for credit assistance, in large part because it has received several applications for highway projects developed pursuant to concession agreements as a result of State implementation of public-private partnership initiatives. The pipeline of expected TIFIA applications, which demonstrates that this demand is not likely to subside in the foreseeable future, is also dominated by these types of projects. In response to recurring concerns over the length of time associated with executing and closing loans for these types of projects, the DOT intends to offer certain borrowers the option of an expedited loan process or “fast track,” which would require such borrowers to accept certain standard loan terms set forth in template loan documents. 

## Expedited Loan Process and Template Loan Documents 

The statutory and regulatory requirements applicable to the TIFIA program will not be modified, amended, or supplemented for purposes of the expedited loan process. If an applicant wishes to take advantage of the expedited loan process, the applicant would be required to agree to the standard terms and conditions contained in a template term sheet (subject to negotiation of certain project specific terms, which must be separately negotiated for each transaction). The DOT would then commit to execute a loan agreement substantially similar to the template loan agreement, which is maintained on the TIFIA Web site, within 45 days of the applicant's signature accepting the term sheet. The expedited loan process will be subject to the DOT Credit Council and Secretary approving the loan. An applicant's decision to seek an expedited process will not affect the Department's decision to approve or disapprove credit assistance. Applicants are strongly encouraged to make use of this innovative process. 

                    For purposes of the expedited process, the DOT has developed a template term sheet for applicants requesting secured loans for eligible highway projects being developed pursuant to a concession agreement with senior bank and/or bond debt facilities. The template term sheet contains the key business terms to                           ( print page 54200)                        which the DOT would require the borrower to agree and certain project specific terms that must be separately negotiated for each transaction. The DOT expects that these terms may be modified periodically to reflect changes in TIFIA policies and practices. The DOT seeks public comment regarding the terms contained in the template term sheet. The template term sheet can be viewed at the docket established for this notice or at the TIFIA Web site at                     *http://tifia.fhwa.dot.gov*.                 

                    The DOT has also developed a template loan agreement. In order to receive the DOT's commitment to an expedited process, an applicant must agree that the standard template loan agreement is acceptable in form and substance, subject only to modifications required to conform the agreement to the terms and conditions of the agreed upon term sheet. The DOT expects that these terms may be modified periodically to reflect changes in TIFIA policies and practices. The DOT seeks public comment regarding the terms contained in the template loan agreement. The template loan agreement can be viewed at the docket established for this notice or at the TIFIA Web site at                     *http://tifia.fhwa.dot.gov*.                 

The DOT is aware that some of the terms in the template term sheet and template loan agreement may be unsuitable for transactions involving eligible transit projects. The DOT seeks public comment regarding which terms would need to be amended for transactions involving eligible transit projects developed pursuant to a concession agreement with senior bank and/or bond debt facilities. 

                    Should an applicant seek terms that deviate from those in the template term sheet or the template loan agreement, the DOT may still commit to an expedited process, but only after the revised terms have been agreed to by the DOT. Items that require the TIFIA JPO's due diligence review (                    *e.g.*, traffic and revenue studies, senior loan documents, inter-creditor agreements, rating letters, etc.) do not need to be in final form for DOT to commit to the expedited process; however, DOT's commitment will be subject to receipt and due diligence analysis of final versions similar in every material respect to the draft versions reviewed by the JPO prior to the commitment.                 

Projects that require material deviations from the terms in the template term sheet or the template loan agreement, as determined by the DOT in its sole discretion, would not be eligible for the expedited process. In these circumstances, the DOT will maintain the same approach to loan negotiations that has always characterized the TIFIA program. 

Authority:23 U.S.C 315 and 23 U.S.C. 601-609; 49 CFR 1.48(b)(6), 49 CFR Part 80. 

Issued on: September 12, 2008. 

Thomas J. Madison, Jr., 

Federal Highway Administrator.

[FR Doc. E8-21783 Filed 9-17-08; 8:45 am] 

BILLING CODE 4910-22-P