75612 Federal Register / Vol. 79, No. 243 / Thursday, December 18, 2014 / Notices 

Issued in Washington, DC, on December 

12, 2014. 

Mark W. Bury, 

Assistant Chief Counsel for International Law, 

Legislation, and Regulations. 

[FR Doc. 2014–29710 Filed 12–17–14; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Highway Administration 

[FHWA Docket No. FHWA–2013–0042] 

Major Project Financial Plan Guidance 

AGENCY: Federal Highway 

Administration (FHWA), Department of 

Transportation (DOT). 

ACTION: Final Notice. 

SUMMARY: This final notice announces 

the availability of Major Project 

Financial Plan Guidance. February 2, 

2015 

DATES: Effective Date: The final notice is 

effective February 2, 2015. 

FOR FURTHER INFORMATION CONTACT: Jim 

Sinnette, Office of Innovative Program 

Delivery, 202–366–1561, 

james.sinnette@dot.gov or, Janet Myers, 

Office of the Chief Counsel, 202–366– 

2019, janet.myers@dot.gov, Federal 

Highway Administration, 1200 New 

Jersey Ave. SE., Washington, DC 20590– 

0001. Office hours for the FHWA are 

from 8:00 a.m. to 4:30 p.m., e.t., Monday 

through Friday, except Federal holidays. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

This document may be viewed online 

through the Federal eRulemaking portal 

at: http://www.regulations.gov. 

Electronic submission and retrieval help 

and guidelines are available on the Web 

site. It is available 24 hours each day, 

365 days this year. Please follow the 

instructions. An electronic copy of this 

document may also be downloaded 

from the Office of the Federal Register’s 

Web site at: http://www.archives.gov/

federal-register and the Government 

Printing Office’s Web site at: http://

www.gpo.gov/fdsys. 

Background 

On September 6, 2013, FHWA 

published a notice and request for 

comments regarding the FHWA’s 

proposal to revise the Major Project 

Financial Plan Guidance. Major projects 

are defined in section 106(h) of title 23, 

United States Code (23 U.S.C. 106(h)), 

as projects receiving Federal financial 

assistance with an estimated total cost 

of $500 million or other projects as may 

be identified by the Secretary. Major 

projects are typically large, complex 

projects designed to address major 

highway needs and require the 

investment of significant financial 

resources. The preparation of the annual 

financial plan, as required by 23 U.S.C. 

106(h)(3), ensures that the necessary 

financial resources are identified, 

available, and monitored throughout the 

life of the project. 

The proposed Major Project Financial 

Plan Guidance replaces the existing 

January 2007 Major Project Financial 

Plan Guidance. Title 23 U.S.C. 106, as 

amended by section 1503 of the Moving 

Ahead for Progress in the 21st Century 

Act (MAP–21), allows financial plans to 

include a phasing plan when there are 

insufficient financial resources to 

complete the entire project. In addition, 

23 U.S.C. 106 now requires recipients of 

Federal financial assistance to assess the 

appropriateness of a public-private 

partnership (P3) to deliver the project. 

In addition to these MAP–21 changes, 

the proposed Major Project Financial 

Plan Guidance also incorporates a 

recommendation included in a 2009 

Government Accountability Office 

report titled ‘‘Federal-Aid Highway: 

FHWA Has Improved Its Risk 

Management Approach, but Needs to 

Improve Its Oversight of Project Costs’’ 

(GA–090–751). The report 

recommended that financial plans 

include the cost of financing the project. 

Discussion of Comments 

I. Summary 

All comments received in response to 

the notice and request for comments 

have been considered in adopting this 

final notice. Comments were received 

from the American Association of State 

Highway and Transportation Officials 

(AASHTO), Professional Engineers in 

California Government (PECG), Ernst & 

Young Infrastructure Advisors, LLC 

(E&Y), and representatives of seven 

State DOTs. The following discussion 

identifies and summarizes the major 

comments submitted by the commenters 

in response to the September 6, 2013, 

notice and the FHWA’s responses. 

II. General Comments—Approval of 

Financial Plans 

Comment: The AASHTO believes that 

the FHWA approval of financial plans 

for projects with an estimated cost of 

$500 million or more is not supported 

by the language of the statute (23 

U.S.C. 106(h)(1)) and recommends that 

the guidance be modified to require 

only that the project sponsor submit the 

financial plan to the DOT. The 

AASHTO notes that the DOT would still 

approve financial plans for projects 

receiving Transportation Infrastructure 

Finance and Innovation Act (TIFIA) 

assistance. The Nevada Department of 

Transportation (NDOT) notes that the 

statute only requires submission of 

financial plans and does not mention 

approval or concurrence. 

FHWA Response: The submission of 

major project financial plans is required 

by statute (23 U.S.C. 106(h)(1)). The 

FHWA’s review and approval of major 

project financial plans is to ensure that 

the plans contain the information 

required by 23 U.S.C. 106(h)(3), and is 

necessary for FHWA to carry out its 

stewardship and oversight 

responsibilities for major projects. No 

changes have been made to the 

guidance. 

Comment: AASHTO recommends 

adding a statement clarifying that the 

guidance does not impose any binding 

legal requirements. 

FHWA Response: FHWA 

acknowledges that this guidance does 

not impose any binding legal 

requirements. The purpose of this 

guidance is to clarify the FHWA review 

and approval of financial plans. As 

noted in the guidance, it applies only to 

the development and updates of major 

project financial plan. It does not apply 

to the application of any other Federal 

requirements. No changes have been 

made to the guidance. 

Comment: The NDOT recommends 

that the FHWA Division Office 

determine the acceptability of the 

financial plans and respond to the 

sponsor within 30 days. 

FHWA Response: The guidance states 

that FHWA will determine a financial 

plan’s acceptability within 60 days after 

receipt by the Office of Innovative 

Program Delivery Project Delivery 

Team. Due to the importance and 

complexity associated with financial 

plans and based on previous experience, 

FHWA believes that this timeframe is 

appropriate. No changes have been 

made to the guidance. 

III. General—Project Exemptions 

Comment: The Washington State 

Department of Transportation (WSDOT) 

and the Arkansas State Highway and 

Transportation Department (AHTD) 

recommend that financial plans 

underway prior to MAP–21 be 

exempted from this updated guidance. 

FHWA Response: Consistent with this 

comment the final notice states that this 

guidance will be in effect for all 

financial plans submitted to FHWA 45 

days after date of publication in the 

Federal Register. This identifies specific 

criteria that can be verified by FHWA 

and provide a timeline that will allow 

financial plans submitted prior to the 

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effective date in the Federal Register to 

be reviewed by FHWA using the 

previous guidance. This will help 

ensure a timely and consistent 

implementation of the updated 

guidance. No changes have been made 

to the guidance. 

IV. General—Other Projects ($100 

Million to $500 Million) 

Comment: The Alaska Department of 

Transportation and Public Facilities 

(AKDOT & PF), the Minnesota 

Department of Transportation (MnDOT), 

and the PECG recommend that FHWA 

make a distinction between the 

guidance for projects with an estimated 

cost of $500 million or more and 

projects with an estimated cost of $100 

million or more that are not designated 

major projects. The AASHTO 

recommends that the guidance clarify 

that financial plans for projects with an 

estimated cost of $100 million or more 

that are not designated major projects 

will be less detailed. 

FHWA Response: The statute (23 

U.S.C. 106(i)) uses the same term, 

‘‘annual financial plan,’’ for both major 

projects and other projects (projects 

with an estimated cost of $100 million 

or more that are not designated major 

projects). The only distinction in the 

statute is that financial plans for other 

projects only need to be made available 

upon request, which is reflected in the 

guidance. Thus, financial plans for 

projects $100 million to $500 million 

must address the same information as 

financial plans for major projects. No 

changes have been made to the 

guidance. 

Comment: AASHTO recommends that 

for projects with an estimated cost of 

$100 million or more that are not 

designated major projects, project 

sponsors should have the option of 

submitting a single financial plan that 

covers multiple projects in a single 

geographical area. 

FHWA Response: The guidance has 

been modified to allow project sponsors 

to submit a single financial plan that 

covers multiple projects with prior 

concurrence of the FHWA Division 

Office. 

Comment: AASHTO recommends that 

a project sponsor have the option of 

preparing a phased financial plan for a 

project with an estimated cost of $100 

to $500 million. 

FHWA Response: As stated within, 

this guidance applies to section 106(i) 

and allows the option to prepare a 

phased financial plan. (23 U.S.C. 

106(h)(1)(B)) No changes have been 

made to the guidance. 

Comment: AASHTO recommends that 

if a phased financial plan is prepared for 

a project with an estimated cost of $100 

million to $500 million, that plan 

should be deemed to satisfy fiscal 

constraint requirements for that project. 

FHWA Response: The guidance now 

states that if a phasing plan is included 

in an approved financial plan and fiscal 

constraint requirements are met for the 

funded phase, then pursuant to 23 

U.S.C. 106(h)(3)(c) the overall project is 

deemed to meet fiscal constraint 

requirements under 23 U.S.C. 134 and 

135. 

Comment: The MnDOT recommends 

that the identification of projects with 

an estimated cost of less than $500 

million, where FHWA requires a 

submission of financial plans, be done 

at the time of the National 

Environmental Policy Act (NEPA) 

decision and include a written 

explanation from FHWA. 

FHWA Response: The preparation of 

financial plans for other projects 

(projects with an estimated cost of $100 

million or more that are not designated 

major projects) is required by statute (23 

U.S.C. 106(i)). They are to be made 

available for review upon request by 

FHWA. The statue does not require 

specific notification or rationale for 

requesting the submission of financial 

plans for other projects. The FHWA 

Division Offices will work with project 

sponsors to establish expectations for 

financial plans for other projects as part 

of the Division Office’s overall 

stewardship and oversight approach. No 

changes have been made to the 

guidance. 

Comment: The MnDOT recommends 

a standardized process be implemented 

to ensure that the requirement to submit 

annual updates based on reasonable 

assumptions ‘‘as determined by the 

Secretary’’ is applied consistently by 

FHWA. 

FHWA Response: This updated 

guidance along with the technical 

assistance provided by FHWA staff to 

project sponsors is intended to promote 

consistency in the FHWA review of 

financial plans. No changes have been 

made to the guidance. 

V. General—Project Applicability 

Comment: The AHTD recommends 

that financial plans should only be 

completed if the Federal funds used for 

the project are $80 million or more. 

FHWA Response: The threshold for 

financial plans is contained in statute 

(23 U.S.C. 106(h)(1)) and does not 

specify a minimum amount of Federal 

financial assistance. No changes have 

been made to the guidance. 

Comment: The PECG commented that 

the guidance, especially with respect to 

the P3 assessment, should not apply to 

all TIFIA assisted projects. 

FHWA Response: The requirement for 

the P3 assessment is contained in the 

statute (23 U.S.C. 106(h)(3)(D)) and 

therefore, must be applied to TIFIA 

assisted projects that require 

compliance with major project financial 

plan requirements. No changes have 

been made to the guidance. 

VI. General—Guidance References 

Comment: The NDOT recommends 

including, by reference, accompanying 

documents that must be read at the 

same time to understand and put into 

context changes in the guidance. The 

NDOT specifically mentions the 

Operational Independence and NonConcurrent Construction guidelines, the 

FHWA Major Project Program Cost 

Estimating Guidance, and any risk 

management reference. 

FHWA Response: The reference to the 

Major Project Program Cost Estimating 

Guidance is included in the Major 

Project Financial Plan Guidance. This 

revised guidance replaces the 

previously separate Operational 

Independence and Non-Concurrent 

Construction guidelines and there is no 

FHWA risk management reference 

included in this guidance. No changes 

have been made to the guidance. 

VII. General—Fiscal Constraint 

Requirements (23 U.S.C. 134 and 135) 

Comment: AASHTO recommends that 

project sponsors be allowed to submit 

an initial financial plan prior to the 

completion of NEPA to be used as the 

basis for meeting fiscal constraint 

requirements. 

FHWA Response: As noted in the 

guidance, the FHWA will not approve a 

major project financial plan until the 

selected alternative for the project has 

been identified in the NEPA decision 

document for the project. An annual 

financial plan is a comprehensive 

document that reflects the project’s 

scope, schedule, cost estimate, and 

funding structure to provide reasonable 

assurance that there will be sufficient 

funding available to implement and 

complete the entire project, or a 

fundable phase of the project, as 

planned. This documentation cannot be 

prepared until a project has been 

identified through the NEPA process. 

No changes have been made to the 

guidance. 

Comment: AASHTO recommends that 

the guidance should state that financial 

plans prepared during the NEPA 

process will have a lower level of detail 

than a financial plan that is prepared at 

a later stage of project development. 

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FHWA Response: This guidance only 

applies to financial plans needed to 

meet the major project requirements. 

Financial plan approval is required from 

FHWA prior to the first Federal 

construction authorization. The FHWA 

will not approve a major project 

financial plan until the selected 

alternative for the project has been 

identified in the NEPA decision 

document for the project. No changes 

have been made to the guidance. 

VIII. General—Risk Assessments 

Comment: The NDOT commented 

that the guidance does not separate the 

Planning Stage Risk Assessment Process 

with its corresponding level of effort 

versus the Major Project Risk 

Assessment Process. The NDOT 

recommends that under the phased plan 

discussion, additional guidance should 

be provided to explain the risk 

assessment expectations for projects 

within the Statewide Transportation 

Improvement Program (STIP), for 

projects 2 to 3 years outside the STIP, 

and projects within the 20-year Long 

Range Plan. The NDOT also 

recommends that the guidance describe 

the specific level of effort for preparing 

and maintaining a risk register and 

include risk management expectations 

for the projects and risk strategies to 

deliver projects early if funding is 

identified after the financial plan has 

been approved. 

FHWA Response: This guidance only 

applies to financial plans needed to 

meet the major project requirements. It 

is not intended to prescribe to project 

sponsors the methods and efforts 

required to conduct project risk 

assessments and develop and 

implement risk strategies. This 

comment is outside the established 

scope of the guidance. No changes have 

been made to the guidance. 

IX. Project Funding 

Comment: For a phased financial 

plan, the NDOT recommends the 

guidance clarify that the identified 

funded phase is the only portion of the 

project that is to be fiscally constrained. 

FHWA Response: The guidance does 

note in Section 4 under Contents of the 

Financial Plan that detailed funding 

information only needs to be included 

for each funded phase. No changes have 

been made to the guidance. 

X. Operationally Independence and 

Non-Concurrent Construction (OINCC) 

Projects 

Comment: The AHTD and the 

Wisconsin Department of 

Transportation (WisDOT) recommend 

that the guidance clarify the definition 

of OINCC. Similarly, AASHTO 

recommends that the guidance clarify 

that a finding of OINCC is not required 

for each phase of the project that is 

covered in a phased financial plan. The 

AASHTO and the WisDOT further 

recommend that the term ‘‘phase’’ 

should not be used to refer to a project 

stage that is determined to be OINCC. 

Additionally, AASHTO recommends 

that the guidance clarify that a finding 

of OINCC is required only if the project 

defined in the NEPA document will be 

divided into small projects, each of 

which will be covered in a separate 

financial plan. 

FHWA Response: FHWA has revised 

the definition of OINCC in the guidance 

to clarify discussion on phased financial 

plans. Specifically, the term ‘‘phase’’ 

will not be used in the definition. The 

guidance now specifies that each phase 

of a phased financial plan does not have 

to meet the OINCC criteria and that such 

a finding is needed only when the 

project defined in the NEPA document 

will be divided into smaller portions for 

the purposes of applying major project 

requirements. 

Comment: AASHTO recommends that 

the application of the OINCC criteria be 

flexible and pragmatic. Specifically, 

AASHTO recommends that the 5-year 

and 20-year periods be used as general 

guides, not rigid requirements. The 

AASHTO also recommends that the 

guidance include examples to describe 

the types of projects that would (and 

would not) be considered OINCC. 

FHWA Response: The FHWA will 

continue to be flexible and pragmatic 

regarding the entire guidance. Due to 

the varied characteristics of major 

projects, examples would not be able to 

cover the many potential scenarios and 

therefore will not be included in the 

guidance. The FHWA staff will be 

available to discuss the OINCC criteria 

with project sponsors. No changes have 

been made to the guidance. 

Comment: The Colorado Department 

of Transportation (CDOT) commented 

that the 20-year threshold is excessive 

because of changing priorities and the 

unpredictability of OINCC projects 

within that period. The CDOT further 

recommends that subsequent OINCC 

projects could be determined with the 

remaining criterion of a 5-year threshold 

between the completion of one portion 

and the beginning of the next portion. 

Finally, CDOT recommends that if 

funding is identified for future OINCC 

projects, they may be added to a 

project’s financial plan. Similarly, the 

AKDOT & PF commented that the 20- 

year threshold criterion should be 

removed and that a State DOT should be 

able to adapt to changes in available 

funding to accelerate the project 

schedule. 

FHWA Response: The OINCC section 

has been revised to clarify the 

application of the criteria and identify 

when financial plans are required for 

OINCC projects. The 20-year threshold 

ensures that the OINCC guidance is 

used for projects that are scheduled to 

be delivered over such an extended 

period of time that it is not realistic to 

expect that a project sponsor’s financial 

plan can provide enough detail for the 

entire project. The 5-year threshold is 

the time between the OINCC project and 

the next portion of the overall project. 

The threshold is used to determine if 

non-concurrent construction exists 

between separate portions of the overall 

project. Requests for revisions, as a 

result of changes in funding availability 

to an OINCC project determination, 

should be submitted to the FHWA 

Division Office. 

Comment: The NDOT recommends 

that the three criteria for OINCC should 

be guidelines, not specific requirements. 

FHWA Response: The criteria are 

considered guidelines and the 

application of each criterion will be 

considered by FHWA on a project 

specific basis. No changes have been 

made to the guidance. 

Comment: The NDOT recommends 

that the guidance clarify when a 

financial plan for OINCC projects is 

required and the level of detail needed 

to conduct a risk assessment. 

FHWA Response: The guidance has 

been revised to clarify when financial 

plans for OINCC projects are required. 

This guidance is for the preparation of 

major project financial plans. It is not 

intended to prescribe to project 

sponsors the methods and efforts 

required to conduct project risk 

assessments. 

XI. TIFIA Projects 

Comment: The CDOT recommends 

that when TIFIA assistance is provided 

to a project, an approval from the TIFIA 

Office for both the initial major project 

financial plan and annual updates 

would simplify and streamline the 

approval process for the project 

sponsors. 

FHWA Response: When TIFIA 

assistance is provided to a project, the 

initial financial plan and annual 

updates are reviewed by both the Project 

Delivery Team and the TIFIA Office. A 

consolidated concurrence from both the 

TIFIA Office and Project Delivery Team 

is prepared. The Division Office will 

then provide the approval to the project 

sponsor. This review process 

incorporates a multi-disciplined 

approach as each office has a different 

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function. No changes have been made to 

the guidance. 

Comment: AASHTO recommends that 

the guidance clarify that it is 

permissible, but not required, to submit 

a single document that serves as both 

the major project financial plan and the 

TIFIA financial plan. 

FHWA Response: The guidance does 

not require the submission of a single 

document, however, it may be more 

efficient to submit one financial plan 

since it is a TIFIA requirement that the 

TIFIA financial plan be prepared in 

accordance with major project financial 

plan guidance. The guidance has been 

clarified. 

Comment: AASHTO states that the 

entity submitting the major project 

financial plan may be different than the 

entity submitting the TIFIA financial 

plan. 

FHWA Response: FHWA recognizes 

in the guidance that there may be 

multiple documents submitted by 

multiple project sponsors needed to 

meet the requirement of a major project 

financial plan and the requirement of a 

TIFIA financial plan. However, the 

documents would supplement each 

other and together satisfy both 

requirements. No changes have been 

made to the guidance. 

Comment: AASHTO states that the 

requirement to submit annual updates 

under a TIFIA loan agreement extends 

for the duration specified in the 

agreement while the requirement to 

submit annual updates for major 

projects extends only through the 

completion of construction. 

FHWA Response: The guidance notes 

that the submission of annual updates of 

projects with TIFIA assistance may 

extend beyond substantial completion 

of the project. The TIFIA office requires 

its financial plans to be prepared in 

accordance with the major project 

financial plan guidance after the 

completion of construction. The 

guidance also notes that after the major 

project requirements have been met, 

financial plans with TIFIA assistance 

may be required throughout the life of 

the loan. No changes have been made to 

the guidance. 

Comment: AASHTO recommends 

clarification that the guidance can be 

superseded by provisions in the TIFIA 

loan agreement or other project 

agreements with FHWA and/or DOT. 

FHWA Response: All TIFIA loan 

agreements, regardless of total project 

cost, require the borrower to submit 

annual financial plans in accordance 

with this guidance. The methods for 

developing and updating major project 

financial plans presented in the 

guidance are not legally binding 

requirements, and may be modified, as 

appropriate by TIFIA loan agreements or 

other legally binding agreements, to 

meet both the TIFIA and other legal 

requirements. No changes have been 

made to the guidance. 

XII. Multiple Project Sponsors 

Comment: The NDOT asks if a project 

sponsor, whose only role was to 

contribute certain funds to the project, 

has to provide a certification for the 

entire financial plan or just for their 

contribution. 

FHWA Response: The guidance now 

includes a definition of a project 

sponsor. A project sponsor is defined as 

an entity that provides funds for the 

project and administers any 

Construction or Construction 

Engineering/Inspection activities for the 

project. If an entity was only providing 

funds and not administering 

construction related activities, then a 

financial plan letter of certification from 

that entity is not required. 

Comment: The NDOT recommends 

defining the term ‘‘otherwise’’ in the 

sentence: ‘‘If the State DOT granting the 

concession has also provided funds 

(whether Federal-aid or otherwise), then 

both the public and private entities 

would be considered Project Sponsors.’’ 

The NDOT also recommends adding 

that P3s should submit a financial plan. 

FHWA Response: The phrase 

‘‘Federal-aid or otherwise’’ has been 

replaced with ‘‘any type of funds.’’ The 

guidance states that single or multiple 

financial plans can be submitted at the 

discretion of the project sponsors. This 

may include financial plans from P3s. 

Comment: AASHTO recommends that 

the guidance clarify if it is permissible 

for each project sponsor to submit a 

separate financial plan when there are 

multiple project sponsors. 

FHWA Response: The guidance 

allows for each project sponsor to 

submit separate financial plans for its 

portion of the project. No changes have 

been made to the guidance. 

XIII. Financial Plan Submission Process 

Comment: E&Y and the NDOT 

recommend that the guidance clarify 

that projects other than design/bid/build 

projects will not be subject to stricter 

standards, but FHWA will allow 

flexibility in the timing of the initial 

financial plan submissions. The E&Y 

further recommends that the guidance 

include examples of possible 

timeframes and suggest ways for the 

FHWA Division Offices to coordinate 

with project sponsors regarding 

financial plan submissions. 

FHWA Response: This guidance will 

be applied to all projects regardless of 

procurement method. For all projects, 

the initial financial plan should be 

approved prior to the first authorization 

of Federal funds for construction. Since 

major projects procurement methods are 

often unique, there would be too many 

timeframe examples to include in the 

guidance to cover all scenarios. The 

guidance states that project sponsors 

should coordinate with FHWA Division 

Offices regarding financial plan 

submittals for projects other than 

design/bid/build. No changes have been 

made to the guidance. 

Comment: The MnDOT recommends 

that the FHWA Division Office 

Financial Manager should be the one 

designated contact to ensure conformity 

across plans. 

FHWA Response: The guidance is 

intended to ensure that consistency of 

financial plan reviews. It is at the 

discretion of each FHWA Division 

Office to designate points of contact for 

its oversight activities. No changes have 

been made to the guidance. 

Comment: The WSDOT recommends 

annual updates be submitted no later 

than 90 days after the end of each 

reporting period or ‘‘unless otherwise 

specified in other project related 

obligations (e.g. TIFIA agreements).’’ 

FHWA Response: The guidance 

recognizes that TIFIA agreements may 

affect submission dates and reporting 

periods in the Financial Plans Including 

TIFIA Assistance section. The revision 

proposed by WSDOT for ‘‘other project 

related obligations’’ is too broad to be 

included since it could be interpreted 

that non-Federal project related 

obligations could impact the timing of 

annual update submissions. No changes 

have been made to the guidance. 

Comment: The WSDOT recommends 

allowing a designee, delegated in 

writing from the Chief Executive 

Officer, to sign the project sponsor 

certification. 

FHWA Response: It is acceptable for 

a designee delegated in writing from the 

Chief Executive Officer, to sign the 

project certification. The guidance has 

been revised to adopt this 

recommendation. 

XIV: Project Description 

Comment: The WSDOT recommends 

adding examples (e.g. for toll funding, 

local government pledged funding, etc.) 

in the Project Description of types of 

anticipated funding. The WSDOT 

further recommends providing 

examples of what should be included 

when evaluating the likelihood of 

anticipated amounts being dedicated. 

FHWA Response: The guidance has 

been revised to remove the 

identification of funding in the Project 

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Description section of the guidance. The 

identification of funding for phased 

financial plans is discussed in the 

Project Funds section. Due to the varied 

characteristics of major projects, 

examples would not be able to cover the 

many potential scenarios and therefore, 

will not be included in the guidance. 

The FHWA staff will be available to 

discuss the different types of projects 

and project funding sources. 

Comment: AASHTO recommends that 

the guidance not require an ‘‘outline’’ of 

the entire environmental review 

process. They stated that it should be 

sufficient to describe the components of 

the project as they are defined in the 

applicable NEPA document. 

FHWA Response: It is important that 

FHWA has a clear understanding of the 

environmental review process since it 

results in the identification of the 

project scope. The term ‘‘outline’’ is 

used in the guidance to convey that a 

detailed discussion is not required. No 

changes have been made to the 

guidance. 

XV. Project Cost 

Comment: The AKDOT & PF and 

WSDOT recommend that including the 

costs of NEPA and other environmental 

documentation should be revisited. 

Large corridor projects often have 

multiple layers of environmental 

documentation that go back over many 

years. The AKDOT&PF recommends 

that FHWA should work with project 

sponsors to determine appropriate 

boundaries for these costs. 

FHWA Response: The purpose of 

including NEPA and other 

environmental documentation costs is 

to have a total cost for the major project. 

The FHWA will continue to work with 

project sponsors to determine 

appropriate boundaries for all project 

costs. No changes have been made to the 

guidance. 

Comment: The WSDOT, NDOT, and 

AASHTO recommend that FHWA allow 

for alternatives to the FHWA Cost 

Estimate Review (CER) process, 

including those developed by the 

project sponsor. The WSDOT and 

AASHTO further recommend that 

FHWA not mandate the use of 70th 

percentile costs. 

FHWA Response: The guidance has 

been revised to address alternative CER 

processes or variations from the 70th 

percentile cost. Alternatives to the CER 

process and variations from the 70th 

percentile cost will be considered by 

FHWA on a case-by-case basis. 

Comment: The NDOT questioned if 

CERs are needed for other specific 

milestones. 

FHWA Response: CERs should be 

conducted prior to the submission of the 

initial financial plan. Major changes that 

occur in the project that significantly 

affect the estimated cost of the project 

should be evaluated to determine if an 

additional CER needs to be conducted. 

The guidance has been revised to 

include a reference to when additional 

CERs may be considered. 

Comment: AASHTO recommends that 

the project sponsor participate in the 

CER. 

FHWA Response: It is important for 

the project sponsor to participate in the 

CER since the project sponsor is often 

the best source to provide project 

information and answer questions. The 

guidance has been revised to indicate 

that the project sponsor should 

participate in the entire CER. 

XVI. Project Funds 

Comment: The CDOT commented that 

referring to advance construction funds 

as State funds will confuse the 

presentation of the financial plan. 

Providing a statement of amounts 

converted in the annual updates will 

achieve the desired objective. The 

CDOT recommends eliminating this 

requirement from the initial financial 

plan, but instead recommends reporting 

the conversion amounts in the annual 

update. The WisDOT recommends State 

DOTs be excluded from reporting 

annual conversion amounts when using 

advance construction to manage funds 

internally within a budget year, but not 

as a special funding technique that 

borrows from future Federal funds. 

FHWA Reponses: The guidance has 

been revised to eliminate the reporting 

of estimated annual conversion 

amounts. Project sponsors should work 

with FHWA to identify a mutually 

agreeable method to show advance 

construction in the financial plans. In 

all cases the total special funding 

technique amount, the amount 

converted to date, and the amount 

remaining should be reported. 

Comment: The WisDOT comments 

that there would be an inconsistency 

between financial plans and State 

budget authority if the financial plan 

included the annual conversion 

amounts. 

FHWA Response: The guidance has 

been revised to clarify how special 

funding techniques are documented and 

that estimated annual conversion 

amounts do not need to be provided. 

The financial plan will only reflect 

actual conversion amounts and so there 

should be no inconsistency. 

XVII. Financing Issues 

Comment: E&Y and WSDOT 

recommend that financing from debt 

proceeds address project-specific debt, 

or incremental additional borrowing 

related to the project, and not 

programmatic financing. Similarly, 

AASHTO recommends that the 

guidance allow project sponsors 

discretion to determine the appropriate 

level of detail in discussing financing 

costs. When a project sponsor is not 

proposing project-specific borrowing, 

AASHTO recommends that the project 

sponsor should not be required to 

quantify borrowing costs. Where a 

project sponsor is proposing to issue 

bonds specifically for the project, 

AASHTO recommends that it should be 

sufficient for the financial plan to 

provide an estimate of annual payments 

and revenues. 

FHWA Response: FHWA recognizes 

that project-specific financing cost 

information is more readily available. 

When project-specific debt is issued, the 

financial plan should show the total 

cost of financing for the project, which 

could be an estimate if that is the best 

information available at the time of the 

financial plan submission. The 

programmatic financing cost discussion 

would be at a programmatic level of 

detail. No changes have been made to 

the guidance. 

Comment: The AKDOT&PF and 

WSDOT believe that the adequacy of the 

financial plan should be based on the 

ability to fully fund and complete 

construction, not on future debt service 

for non-Federal financing. The WisDOT 

recommends flexibility to allow project 

sponsors to determine the level of total 

debt financing for a project because at 

the time of the initial financial plan 

adoption, the total financing cost for a 

project is not known. 

FHWA Response: The purpose of the 

Financing Issues section of the financial 

plan is to document financing costs and 

estimates to fully fund and complete 

construction of the project. Non-Federal 

financing will not be evaluated and 

FHWA will not make a determination 

on whether the project sponsor is 

capable of repayment. Any changes to 

the amount of financing costs or 

estimates can be reflected in annual 

updates to the initial financial plan. No 

changes have been made to the 

guidance. 

XVIII. Cash Flow 

Comment: E&Y and the NDOT 

recommend adding clarification or an 

example narrative for the discussion of 

the project sponsor’s ability to deliver 

its capital program in the guidance. The 

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Federal Register / Vol. 79, No. 243 / Thursday, December 18, 2014 / Notices 75617 

MnDOT and NDOT offer that the project 

sponsor could be allowed to refer to a 

current annual STIP Financial Report to 

demonstrate the project sponsor’s ability 

to deliver its capital program. 

FHWA Response: The guidance has 

been revised to remove the discussion 

on the overall impact of the project 

sponsor’s ability to deliver the State 

transportation capital program. As 

discussed in the guidance, the review of 

the STIP is an important step by FHWA 

in the review and approval process for 

financial plans. This review of the STIP, 

along with the option of submitting a 

phased financial plan, makes further 

discussion on the overall impact of the 

project sponsor’s ability to deliver its 

capital program unnecessary. 

Comment: The MnDOT recommends 

that FHWA consider drawing on the 

expertise of financial credit rating 

agencies when assessing the credibility 

of a project sponsor for major projects. 

FHWA Response: This guidance is not 

intended to document the FHWA 

methods and efforts required to assess 

the creditability of a project sponsor. 

This comment is outside the established 

scope of the guidance. No changes have 

been made to the guidance. 

XIX. Public-Private Partnership 

Assessment 

Comment: The PECG recommends 

that the P3 assessment include a 

complete cost-benefit analysis to deliver 

the project with a detailed list of 

contents in the analysis. 

FHWA Response: Title 23 U.S.C. 

106(h) requires the financial plan to 

include an assessment regarding the 

appropriateness of a P3 to deliver the 

project. The guidance includes 

appropriate discussion regarding the 

comparison of benefits and challenges 

of procuring the project as a P3 

compared to traditional procurement 

methods. The guidance is intended to 

allow different assessment methods by 

project sponsors. No changes have been 

made to the guidance. 

Comment: The PECG recommends 

that public servants be used, rather than 

private sector employees, to perform all 

construction inspection functions for P3 

projects. 

FHWA Response: This guidance is for 

the preparation of financial plans and is 

not intended to prescribe project 

sponsor decisions for how the project is 

managed, including how project 

inspection services will be performed. 

This comment is outside the established 

scope of the guidance. No changes have 

been made to the guidance. 

Comment: E&Y and the NDOT 

recommend that FHWA should not 

second guess the project sponsor’s 

delivery decision based on the P3 

assessment. 

FHWA Response: The purpose of the 

P3 assessment is to provide a brief 

documentation of the procurement 

decisionmaking process. The P3 

assessment is not intended to prescribe 

a process for the project sponsor’s 

delivery decision or to evaluate the 

decision of the project sponsor. The 

guidance is consistent with this 

purpose. No changes have been made to 

the guidance. 

Comment: The AHTD recommends 

that if P3 mechanisms are not allowed 

by State law, there should be no 

reporting requirements. The WisDOT 

recommends that if there is no enabling 

legislation for P3s, then a generic 

statement to that effect will suffice for 

responding to this section. The 

AASHTO recommends that the 

consideration of a P3 be brief if it is 

obvious that a P3 is not viable because 

of State law and there is no reasonable 

basis for expecting that law to change. 

FHWA Response: The guidance 

identifies the items that should be 

covered in the narrative to assess the 

appropriateness of a P3 to deliver the 

project. The absence of legislative 

authority is included in these items. 

Therefore, if State law does not allow 

the use of P3s, then the narrative should 

reflect that. No changes have been made 

to the guidance. 

Comment: The AHTD recommends 

that when tolling, bonding, or TIFIA 

financing methods are not appropriate 

for the project, previous analyses should 

be adequate with no further reporting 

requirements. 

FHWA Response: The guidance notes 

that the P3 assessment is a narrative 

describing the process used to consider 

whether a P3 procurement is 

appropriate to deliver the project. 

Referencing and summarizing previous 

analyses may be adequate to meet these 

criteria. No changes have been made to 

the guidance. 

Comment: The MnDOT states that the 

analysis for a P3 delivery would be 

based on historic rather than recent 

consideration. The WSDOT 

recommends that only the results of 

earlier P3 analyses, if any, should be 

identified in the initial financial plan. 

Similarly, AASHTO recommends that 

the guidance should specify that the 

discussion of a P3 should include the 

reasons for or against using a P3 when 

the decision is made by the time the 

initial financial plan is submitted. 

FHWA Response: A P3 assessment 

can be based on a previous project level 

analysis. If a P3 assessment has not been 

conducted at the time of the initial 

financial plan preparation, then an 

assessment must be done before the 

initial financial plan is submitted to 

meet the statutory requirements in 23 

U.S.C. 106(h). The guidance has been 

revised to clarify when a P3 assessment 

is required for phased financial plans. 

The P3 assessment for the unfunded 

portion of a phased financial plan 

should be provided in annual updates 

as the portion of the project is added to 

the financial plan. 

Comment: AASHTO recommends that 

annual updates to a financial plan 

should not be required to revisit the 

appropriateness of a P3, and that it 

should be sufficient for the annual 

updates to summarize the assessment 

that was included in the initial financial 

plan. 

FHWA Response: There is no need to 

revisit the appropriateness of a P3 in the 

financial plan, except in the case of 

phased financial plans when a new 

portion of the project is added or when 

the procurement method changes to use 

a P3 or not. No changes have been made 

to the guidance. 

XX. Final Major Project Financial Plan 

Guidance 

The FHWA has updated its Major 

Project Financial Plan Guidance. The 

FHWA published the proposed 

guidance for public comment on 

September 6, 2013. After considering all 

the comments, the FHWA has 

incorporated all appropriate edits into 

the guidance. As such, the revised 

guidance, which can be found at http:// 

www.fhwa.dot.gov/ipd, will be in effect 

for all financial plans submitted to 

FHWA February 2, 2015. 

Authority: 23 U.S.C. 315; 23 CFR 

633.104(a) 

Issued On: December 9, 2014. 

Greg G. Nadeau, 

Acting Administrator, Federal Highway 

Administration. 

[FR Doc. 2014–29653 Filed 12–17–14; 8:45 am] 

BILLING CODE 4910–22–P 

DEPARTMENT OF THE TREASURY 

Submission for OMB Review; 

Comment Request 

December 15, 2014. 

The Department of the Treasury will 

submit the following information 

collection requests to the Office of 

Management and Budget (OMB) for 

review and clearance in accordance 

with the Paperwork Reduction Act of 

1995, Public Law 104–13, on or after the 

date of publication of this notice. 

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