Draft Availability Payment Concessions Public-Private Partnership Model Contract Guide, 60950-60952 [2015-25656]

Agencies

• Federal Highway Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 80, Number 195 (Thursday, October 8, 2015)]
[Notices]
[Pages 60950-60952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25656]


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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.

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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.

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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:https://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: https://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 https://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 https://www.regulations.gov, including any 
personal information provided.

FOR FURTHER INFORMATION CONTACT: Mark Sullivan, Office of Innovative 
Program Delivery, (202) 366-5785, mark.sullivan@dot.gov, Federal 
Highway Administration, 1200 New Jersey Avenue SE., Washington DC 
20590, or Alla Shaw, Office of the Chief Counsel, (202) 366-1042, 
alla.shaw@dot.gov, 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: https://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: https://www.archives.gov/federal_register and the Government Printing Office's Web page at: 
https://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: https://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: https://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 https://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