Magnetic Levitation Transportation Technology Deployment Program

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 268

[FRA Docket No. FRA-98-4545; Notice No. 3]

RIN 2130-AB29

Magnetic Levitation Transportation Technology Deployment Program

AGENCY: Federal Railroad Administration (FRA), Department of

Transportation (DOT).

ACTION: Final rule.

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SUMMARY: FRA published an Interim final rule with request for comments

on October 13, 1998 (63 FR 54600), implementing the Magnetic Levitation

Technology Deployment Program. An amendment to the interim final rule

was published on February 12, 1999 (64 FR 7133) extending the deadline

for the submission of application packages from December 31, 1998, to

February 15, 1999, and making other adjustments to various dates which

flow from that extension of time.

As amended, the interim final rule establishes dates for the Timing

of Major Milestones and requires FRA to select one project for final

design, engineering, and construction funding at the completion of

Phase III. This rulemaking revises the dates established for the Timing

of Major Milestones to reflect unanticipated delays in the completion

of Phase I of the program, changes the description of Phase II to

eliminate the requirement for each grant recipient to initiate

activities aimed at preparing a site-specific draft Environmental

Impact Statement (EIS), expands Phase III to allow down-selecting to

more than one project for additional study, and shifts FRA's selection

of one project for final design, engineering, and construction funding

to Phase IV. It also specifies that certain expenses incurred prior to

the execution of a cooperative agreement to assist in the financing of

pre-construction activities, but after enactment of the Transportation

Equity Act for the 21st Century (TEA 21) (June 9, 1998), are eligible

for reimbursement of the Federal share of the cost.

EFFECTIVE DATE: This final rule is effective January 14, 2000.

FOR FURTHER INFORMATION CONTACT: Arnold Kupferman, FRA, 1120 Vermont

Ave., NW, Washington, DC 20590 (telephone 202-493-6365; E-mail address:

(Arnold.K[email protected]), or Gareth Rosenau, Attorney, Office of

Chief Counsel, FRA, 1120 Vermont Ave., NW, Mailstop 10, Washington, DC

20590 (telephone 202-493-6054; E-mail address:

Gareth.R[email protected]).

SUPPLEMENTARY INFORMATION:

I. Background

A. The Transportation Equity Act for the 21st Century (TEA 21)

TEA 21 (Pub. L. No. 105-178) adds a new section 322 to title 23 of

the United States Code. Section 322 provides a total of $55 million for

Fiscal Years 1999 through 2001 for transportation systems employing

magnetic levitation (``Maglev''). Section 322 requires FRA to establish

project selection criteria, to solicit applications for funding, to

select one or more projects to receive financial assistance for

preconstruction planning activities, and, after completion of such

activities, to select one of the projects to receive financial

assistance for final design, engineering, and construction activities.

Section 322 authorizes--but does not appropriate--additional Federal

funds of $950 million for final design and construction of the most

promising project. Section 322 provides that the portion of the project

not covered by the funds provided under section 322 may be covered by

any non-Federal funding sources--including private (debt and/or

equity), State, local, regional, and other public or public/private

entities--as well as by Federally-provided Surface Transportation

Program, and Congestion Mitigation and Air Quality Improvement Program

funds, and from other forms of financial assistance under TEA 21, such

as loans and loan guarantees.

B. The Interim Final Rule

On October 13, 1998, FRA published in the Federal Register an

interim final rule that established, on an interim basis, the

regulations governing financial assistance under the Maglev Deployment

Program, including the project selection criteria. The document

solicited public comments and applications for Maglev preconstruction

planning grants. As noted above, the rule was amended once to extend

the deadline for submission of application packages from interested

States or their designated authorities. The interim final rule

provides: a definition of terms used in the Interim Final Rule; a

description and schedule for the various phases of the Maglev

Deployment Program; identification of available funding sources for the

Program; requirements for the Federal and State shares and restrictions

on the uses of Federal maglev funds; identification of eligible

participants; project eligibility

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standards; a description of the format, content and timing of

applications for preconstruction planning assistance and the criteria

to be used by FRA in evaluating the applications; and a description of

the criteria to be used in selecting one project for final design,

engineering and construction.

II. Discussion of Comments and Conclusions

FRA received only two timely-filed public comments on the interim

final rule. Set forth below is a summary of the comments received and

FRA's responses to the concerns expressed in those letters to the

docket.

Comment: One commenter expressed concern that the process set forth

in the interim final rule appears to call for project applicants to

commit to proceeding with a maglev project in advance of the

environmental analysis required under National Environmental Policy Act

(NEPA). The commenter alleges that under NEPA any project must involve

a study of alternatives, including technology alternatives which may

have different environmental effects.

Response: Under the authorizing legislation (Section 1218 of TEA

21), the authorized funding can only be used to pay the costs of

preconstruction planning activities, design, engineering and

construction of ``transportation systems employing magnetic levitation

that would be capable of safe use by the public at a speed in excess of

240 miles per hour.'' It is clear that the Congressional intent is to

consider only maglev technology for the use of these funds.

Comment: The second commenter expressed concern that under the

schedule suggested in the interim final rule, not enough time was

allowed for promulgation of appropriate safety standards and testing

for safety before full construction authorization is given.

Response: Under the changes in the schedule effected by this

rulemaking, the selection of one project for final design, engineering

and construction is delayed until March 2001, at the earliest. In no

event will construction be authorized until FRA is fully satisfied that

the system will meet appropriate safety standards.

III. Summary of Revisions to the Interim Final Rule and Rationale

for Such Changes

Changes in Dates

Section 268.3 (b) of the interim final rule, as amended,

established April 30, 1999 as the date for the completion of Phase I--

Competition for Planning Grants. However, the selection of seven of the

applicants for participation in the program was not announced by the

Secretary of Transportation until May 24, 1999. Additional time has

been required to negotiate suitable cooperative agreements with each of

the selected participants. As a consequence, it is necessary to revise

many of the dates specified in the interim final rule to reflect a

realistic schedule.

Eligibility of Pre-agreement Activities

In order to continue on-going work on several projects that had

been initiated prior to the execution of cooperative agreements under

the Maglev Deployment Program and in response to several requests, FRA

has decided to make eligible for funding certain expenses incurred

subsequent to June 9, 1998 ( the date of enactment of TEA 21), provided

that they contributed to development of the Project Description

described in Phase II. This rulemaking adds this provision to

Sec. 268.5 of the rule.

Exclusion of Requirement for Funding for Site-specific EIS in Phase II

of the Project

The interim final rule required that, ``After completion of the EA

[Environmental Assessment], each financial assistance recipient will

initiate activities aimed at preparing a site-specific draft

environmental impact statement.'' It was intended that these activities

would be included in the scope of work to be funded by the

preconstruction planning grant. Because of the constraints on the

available funding, there may not be sufficient funds to pay the Federal

share of the costs of activities aimed at the preparation of site-

specific draft EIS's for each of the seven projects selected for pre-

construction planning, as specified in Sec. 268.3 (c). Therefore, this

rulemaking eliminates that requirement from the description of Phase

II--Project Description Development.

Down-selection of One or More Projects in Phase III of the Program

The interim final rule, as amended, requires FRA to evaluate the

information provided by the seven selected participants during Phase II

of the Program and select a single project for final design,

engineering, and construction funding as Phase III of the Program. FRA

anticipates that after a year of study more than one of the projects

being planned may meet all of the eligibility requirements of the law,

and, without additional information from additional environmental

studies, financial analysis, and detailed design, it will not be

possible to make a well-informed choice of the best project. This

rulemaking changes the description of Phase III--Project Selection

Process to permit the FRA to delay the selection of a single project

for final design, engineering, and construction funding, and to down-

select more than one eligible project for further study. Additional

environmental studies, financial analysis, and detailed design would be

funded for each of the down-selected projects.

Selection of One Project

This rulemaking also changes Phase IV--Project Development and

Completion of Site-Specific EIS to require FRA to select one project,

if more than one project is down-selected by FRA in Phase III.

These proposed changes have been discussed with the seven

participating agencies that would be affected by the proposed change,

and there is agreement that such changes are desirable.

Regulatory Analyses and Notices

This rulemaking modifies the interim final rule by:

(1) Eliminating the requirement in Sec. 268.3 (c) for each grant

recipient to initiate activities aimed at the preparation of a site-

specific EIS after completion of an Environmental Assessment (EA);

(2) Modifying Sec. 268.3 (d) to allow the FRA to down-select one or

more projects and to finance the preparation of environmental and other

additional studies for the down-selected projects before selecting one

project for final design, engineering, and construction funding;

(3) Changing Sec. 268.3 (e) to require FRA to select one project

for final design, engineering, and construction funding, if more than

one project is down-selected by FRA in Phase III;

(4) Amending the dates specified in Sec. 268.3 to reflect a

realistic schedule;

(5) Adding paragraph (c) to Sec. 268.5 to make some costs incurred

after June 9, 1998 eligible for reimbursement; and

(6) Amending Sec. 268.21 to conform to the above changes.

There are no other changes to the interim final rule.

Regulatory Analyses and Notices

E.O. 12866 and DOT Regulatory Policies and Procedures

The agency has evaluated this Final Rule in accordance with

existing regulatory policies and procedures and has concluded that it

is a nonsignificant regulatory action under E.O. 12866, and

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a nonsignificant rule under section 5(a)(4) of the DOT Regulatory

Policies and Procedures (44 FR 11034, February 26, 1979). The Final

Rule is not a significant regulatory action under E.O. 12866 because it

will not have an annual effect on the economy of $100 million or more

or adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities; will not create a serious inconsistency with an action

planned or underway by another Federal agency; will not materially

alter the budgetary impact of entitlements, grants, user fees, or loan

programs or the rights and obligations of recipients thereof; and will

not raise novel legal or policy issues arising out of legal mandates,

the President's priorities, or the principles of the Executive Order.

The Final Rule implements the preconstruction planning portion of a

Congressionally mandated program to provide financial assistance to

state and local governments in developing and implementing a

transportation project involving magnetic levitation. At this time, the

sum of $55 million dollars is available to implement the program and an

authorization for future appropriations totaling $950 million is in

place. However, as noted earlier, the availability of these additional

funds is contingent on an appropriation by the Congress.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)

requires a review of rules to assess their impact on small entities.

FRA certifies that this rule will not have a significant impact on a

substantial number of small entities. Eligible applicants for the

Maglev Deployment Program are limited by the enabling statute (23

U.S.C. 322(d)) to States or authorities designated by one or more

States. The program implemented by the final rule has the potential to

benefit some small entities who may be able to participate as

consultants to States or designated authorities in the preconstruction

planning activities, final design, engineering and construction

activities for Maglev deployment.

Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. 3501 et seq.) addresses the

collection of information by the Federal government from individuals,

small businesses and State and local government and seeks to minimize

the burdens such information collection requirements might impose. A

collection of information includes requiring answers to identical

questions posed to, or identical reporting or record-keeping

requirements imposed on, ten or more persons, other than agencies,

instrumentalities or employees of the United States. This final rule

contains information and reporting requirements that would apply to

States, groups of States or designated authorities that file

applications for Federal funding for preconstruction planning

activities, and to grant recipients who would conduct final design,

engineering and construction activities in support of Maglev

deployment. As anticipated in the interim final rule, the statutory

limit on the types of entities that may apply for funding (States,

groups of States, and State designated authorities), the rigorous

requirements for developing a viable project, and the substantial

financial and resource commitment that were required of applicants, the

FRA received fewer than 10 completed applications for preconstruction

planning funds from qualified applicants.

Environmental Impact

FRA has evaluated these regulations in accordance with its

procedures for ensuring full consideration of the potential

environmental impacts of FRA actions, as required by the National

Environmental Policy Act (42 U.S.C. 4321 et seq.) and related

directives. FRA has concluded that the issuance of this final rule,

which establishes a process for receiving applications for planning

activities associated with the Maglev Deployment Program, does not have

a potential impact on the environment and does not constitute a major

Federal action requiring an environmental assessment or environmental

impact statement. The final rule includes requirements for the

preparation of environmental assessments of proposed Maglev projects by

successful applicants during the preconstruction planning stage and

additional environmental reviews will be undertaken under the auspices

of the FRA before one Maglev project is selected for final design and

construction funding.

Federalism Implications

This final rule has been analyzed in accordance with the principles

and criteria contained in Executive Order 12612, and FRA has determined

that it does not have sufficient federalism implications to warrant the

preparation of a Federalism Assessment. The Maglev Deployment Program

provides states with the opportunity to explore the development of a

new transportation technology in a working partnership with the Federal

Government.

List of Subjects in 49 CFR Part 268

Grant programs-transportation, High speed ground transportation,

Maglev, Magnetic levitation.

IV. Provisions of The Final Rule

In consideration of the foregoing, FRA revises part 268 title 49 of

the Code of Federal Regulations to read as set forth below:

PART 268--MAGNETIC LEVITATION TRANSPORTATION TECHNOLOGY DEPLOYMENT

PROGRAM

Subpart A--Overview

268.1 Definitions.

268.3 Different phases of the Maglev Deployment Program.

268.5 Federal funding sources for the Maglev Deployment Program.

268.7 Federal/State share and restrictions on the uses of Federal

Maglev Funds.

Subpart B--Procedures For Financial Assistance

268.9 Eligible participants.

268.11 Project eligibility standards.

268.13 Deadline for submission of applications for preconstruction

planning assistance.

268.15 Form and contents of applications for preconstruction

planning assistance.

268.17 Project selection criteria.

268.19 Evaluation of applications for preconstruction planning

assistance.

268.21 Down-selection of one or more Maglev projects for further

study and selection of one project for final design, engineering,

and construction funding.

Authority: 49 U.S.C. 322; 23 U.S.C. 322; 49 CFR 1.49.

Subpart A--Overview

Sec. 268.1 Definitions.

As used in this part--

CMAQ means Congestion Mitigation and Air Quality Improvement

Program (23 U.S.C. 149).

Environmental assessment (``EA'') means the environmental

assessment in support of the project description and containing the

information listed in Sec. 268.11(b)(6)(i).

Environmental impact statement (``EIS'') means the environmental

impact statement which is required pursuant to Secs. 268.3.

Eligible project costs means the costs of preconstruction planning

activities and the capital cost of the fixed guideway infrastructure of

a Maglev project, including land, piers, guideways, propulsion

equipment and other components attached to guideways, power

distribution facilities (including substations), control and

communications facilities, access roads,

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and storage, repair, and maintenance facilities, but eligible project

costs do not include the cost of stations, vehicles, and equipment.

Federal Maglev funds means such funds as are provided under the

authority of 23 U.S.C. 322 to pay for Eligible Project Costs.

Full project costs means the total capital costs of a Maglev

project, including Eligible Project Costs and the costs of stations,

vehicles, and equipment.

Phase means one of the five different phases of the Maglev

Deployment Program; these phases are described in Sec. 268.3.

Maglev means transportation systems employing magnetic levitation

that would be capable of safe use by the public at a speed in excess of

240 miles per hour.

Maglev Deployment Program means the program authorized by 23 U.S.C.

322.

Partnership potential means the usage of the term in the commercial

feasibility study of high-speed ground transportation (High Speed

Ground Transportation for America) mandated under section 1036 of the

Intermodal Surface Transportation Efficiency Act of 1991 (105 Stat.

1978). Under that usage any corridor exhibiting Partnership Potential

must at least meet the following two conditions:

(1) Private enterprise must be able to run on the corridor--once

built and paid for--as a completely self-sustaining entity; and

(2) The total benefits of a Maglev corridor must equal or exceed

its total costs.

STP means the Surface Transportation Program (23 U.S.C. 133).

TEA 21 means the Transportation Equity Act for the 21st Century

(Public Law No. 105-178, 112 Stat. 107).

Sec. 268.3 Different phases of the Maglev Deployment Program.

(a) The Maglev Deployment Program includes five phases, as

described in paragraphs (b) through (f) of this section. The current

projected timing for implementing these phases is indicated to assist

applicants in planning their projects. All dates beyond the first date

(the deadline for the submission of preconstruction planning

applications) are for planning purposes only and are subject to

change--including possible acceleration of deadlines--based on the

progress of the Maglev Deployment Program; grantees will be notified

accordingly.

(b) Phase I--Competition for Planning Grants (Early October 1998--

September 15, 1999).

(1) Description. In Phase I, States will apply for funds for

preconstruction planning activities. As required by Sec. 268.13,

applications must be filed with FRA by February 15, 1999. FRA will

select one or more projects to receive preconstruction planning

financial assistance awarded under this part to perform Phase II of the

Maglev Deployment Program.

(2) Timing of Major Milestones.

(i) February 15, 1999--Planning grant applications due.

(ii) May 24, 1999--FRA announces grantees for planning grants.

(iii) August 31, 1999--FRA awards planning grants for the conduct

of activities listed in Phase II.

(c) Phase II--Project Description Development (July 1, 1999--June

30, 2000).

(1) Description. In Phase II, each grant recipient will prepare and

submit to FRA a project description, supporting preconstruction

planning reports, and an EA. Supporting reports may include demand and

revenue analyses, project specification, cost estimates, scheduling,

financial studies, a system safety plan (including supporting

analysis), and other information in support of the project description.

FRA will use this information in reaching a decision on which projects

to down-select for completion of site-specific environmental studies,

investment grade revenue forecasts, and other studies and analyses

necessary prior to initiation of construction. FRA will initiate

documentation of environmental factors considered in the project

selection process.

(2) Timing of Major Milestones.

(i) February 29, 2000--Deadline for submission of appropriate EA's

needed by FRA for the down-selection of one or more projects under

Phase III.

(ii) June 30, 2000--Deadline for submission of project descriptions

and any related supporting reports needed by FRA for down-selection of

one or more projects.

(d) Phase III--Project Selection Process (July 1, 2000--September

30, 2000).

(1) Description. FRA will evaluate the information provided by the

grant recipients under Phase II and will down-select one or more

projects for completion of additional environmental studies, investment

grade revenue forecasts, and other studies and analyses necessary prior

to initiation of construction.

(2) Timing of Major Milestones. September 30, 2000--FRA down-

selects one or more project(s).

(e) Phase IV--Project Development and Completion of Site-specific

EIS October 1, 2000--November 30, 2001).

(1) Description. The financial assistance recipient(s) down-

selected in Phase III will complete additional environmental studies,

investment grade revenue forecasts, and other studies and analyses

necessary prior to initiation of construction, and address issues

raised by FRA's review of system safety plans (including supporting

analysis). They will also initiate final design and engineering work

for the down-selected project(s). If more than one project is down-

selected in Phase III, FRA will select one of them for final design,

engineering, and construction funding. Detailed agreements for the

construction and operation of the selected project will be negotiated.

(2) Timing of Major Milestones.

(i) March 31, 2001--If more than one project is down-selected in

Phase III, FRA will select one project.

(ii) December 31, 2001--FRA will issue a Final Record of Decision

on the site-specific EIS for the one selected project, confirming the

project design.

(f) Phase V--Completion of Detailed Engineering and Construction

January 1, 2002 and beyond). In Phase V, the sponsoring State or State-

designated authority will oversee the efforts of the public/private

partnership formed to progress the selected project, to complete the

detailed engineering designs, and finance, construct, equip, and

operate the project in revenue service. Construction will be contingent

upon the appropriation of Federal funds. In no event will construction

be authorized until FRA is fully satisfied that the system will meet

appropriate safety standards.

Sec. 268.5 Federal funding sources for the Maglev Deployment Program.

(a) Federal Maglev Funds. Section 322 of Title 23 provides for the

following funds for the Maglev Deployment Program:

(1) Contract authority. Fifty-five million has been made available

for the Maglev Deployment Program as contract authority from the

Highway Trust Fund for Fiscal Years 1999 through 2001; this would be

used to fund the competition in all its phases and could also be used

for final design, engineering, and construction activities of the

selected project. Of the $55 million, the Congress has made available

up to $15 million for Fiscal Year 1999, up to $15 million for Fiscal

Year 2000, and $25 million for Fiscal Year 2001.

(2) Authorization for appropriations. Nine hundred fifty million,

also from the Highway Trust Fund, has been

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authorized to be appropriated for the Maglev Deployment Program for

Fiscal Years 2000 through 2003. Of the $950 million, $200 million is

authorized to be appropriated for each of Fiscal Years 2000 and 2001,

$250 million for Fiscal Year 2002, and $300 million for Fiscal Year

2003. Any decision to proceed with possible Federal funding of the

construction of a Maglev system will be contingent upon the receipt of

appropriations, and upon completion of appropriate environmental

documentation.

(b) Other Federal funds. Section 322 of Title 23 provides that the

portion of the Maglev project not covered by Federal Maglev Funds may

be covered by any non-Federal funding sources--including private (debt

and/or equity), State, local, regional, and other public or public/

private entities--as well as by Federally-provided STP and CMAQ funds,

and by other forms of financial assistance made available under title

23 and TEA 21, such as loans and loan guarantees.

(c) Costs Incurred in Advance of Cooperative Agreement. Certain

costs incurred in advance of the execution of a cooperative agreement

between FRA and the grantee for pre-construction planning but after

enactment of TEA 21 (June 9, 1998) will be eligible for reimbursement,

but such costs are allowable only to the extent that they are otherwise

allowable under the terms of a fully executed cooperative agreement.

Sec. 268.7 Federal/State share and restrictions on the uses of Federal

Maglev Funds.

(a) Federal share. The Federal share of Full Projects Costs shall

be not more than \2/3\, with the remaining \1/3\ paid by the grant

recipient using non-Federal funds. Funds made available under STP and

CMAQ are considered non-Federal funds for purposes of the matching

requirement.

(b) Restrictions on the uses of Federal Maglev Funds.

(1) Federal Maglev Funds may be applied only to Eligible Project

Costs;

(2) Federal Maglev Funds provided under a preconstruction planning

grant may be used only for Phase II activities, and for completion of

site-specific draft EIS's; see Sec. 268.3;

(3) Federal Maglev Funds may be used to pay for only \2/3\ of

preconstruction planning costs; grant recipients are required to pay

the remaining \1/3\ of the costs with non-Federal funds; and

(4) The ``prevailing wages'' requirement of the Davis Bacon Act (40

U.S.C. 276a-276a-5) applies to any construction contracts under the

Maglev Deployment Program.

Subpart B--Procedures For Financial Assistance

Sec. 268.9 Eligible participants.

Any State, or any authority designated by one or more State(s) to

carry out the preconstruction planning activities under the Maglev

Deployment Program is eligible to participate in the Maglev Deployment

Program.

Sec. 268.11 Project eligibility standards.

(a) Project eligibility standards for preconstruction planning

financing. (1) As required by 23 U.S.C. 322(d)(4), in order to be

eligible to receive financial assistance, a Maglev project shall:

(i) Involve a segment or segments of a high-speed ground

transportation corridor that exhibit Partnership Potential;

(ii) Require an amount of Federal funds for project financing that

will not exceed the sum of Federal Maglev Funds, and the amounts made

available by States under STP and CMAQ;

(iii) Result in an operating transportation facility that provides

a revenue producing service;

(iv) Be undertaken through a public and private partnership, with

at least \1/3\

of Full Project Costs paid using non-Federal funds;

(v) Satisfy applicable statewide and metropolitan planning

requirements;

(vi) Be approved by FRA based on an application submitted by a

State or authority designated by one or more States;

(vii) To the extent that non-United States Maglev technology is

used within the United States, be carried out as a technology transfer

project; and

(viii) Be carried out using materials at least 70 percent of which

are manufactured in the United States.

(2) FRA recognizes that applicants for preconstruction planning

grants will not have detailed information with respect to some of the

requirements of paragraph (a)(1) of this section, and that the purpose

of a preconstruction planning grant is to develop much of this

information with respect to a particular Maglev project. As required by

Sec. 268.15, an applicant will need to provide whatever information it

has with respect to each of the requirements of paragraph (a)(1) of

this section, together with a certification that the applicant fully

intends to comply with the requirements of this paragraph (a) should

its project be selected by FRA for final design, engineering and

construction financing.

(b) Project eligibility standards for final design, engineering,

and construction financing. FRA will select the most promising Maglev

project for final design, engineering, and construction financing. To

be eligible to be considered, the project must meet each of the

following requirements; these requirements restate the requirements in

paragraph (a)(1) of this section, but with more detail and in a

different order:

(1) Purpose and significance of the project. (i) The project

description shall point to a Maglev facility and daily operation the

primary purpose of which is the conduct of a revenue-producing

passenger transportation service between distinct points, rather than a

service solely for the passengers' riding pleasure.

(ii) The project description shall incorporate scheduled operation

at a top speed of not less than 240 mph.

(2) Benefits for the American economy. The project description

shall include a certification as to paragraphs (b)(2) (i) and (ii) of

this section and, as appropriate, a technology acquisition/transfer

plan which describes the strategy for their accomplishment.

(i) Processes will be established that will enable an American-

owned and -sited firm (or firms) to gain, in the course of the project,

the capability to participate in the design, manufacture, and

installation of the facilities and vehicles needed for a Maglev

operation, if the owner of the selected version of Maglev technology is

not an American-owned and -sited firm (thus meeting the technology

transfer requirement of 23 U.S.C. 322).

(ii) The 70 percent U.S. content requirement content of 23 U.S.C.

322 will be carried out.

(3) Partnership potential. The project shall exhibit Partnership

potential by satisfying the following:

(i) A private/public partnership must be in place that is ready,

willing, and able to finance, construct, operate, and maintain the

project;

(ii) The private/public partnership either owns the version of

Maglev technology proposed to be implemented in the project, or has an

agreement with the owner which affords full cooperation to the

partnership in progressing the project, including implementation of the

technology acquisition/transfer plan if applicable; and

(iii) The recipient of a preconstruction planning grant or the FRA

has developed and endorsed a projection of system capital costs,

demand, revenues, operating expenses, and total costs and benefits,

that:

(A) Covers either the entire corridor in which the Maglev project

is involved

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(``Corridor''), or the project considered independently;

(B) Demonstrates that private enterprise would be able to run the

Corridor or the project--once built and paid for--as a completely self-

sustaining entity, in which revenues will cover operating expenses and

continuing investment needs; and

(C) Shows total benefits equal to or exceeding total costs.

(4) Funding Limits and Sources. The project description shall

include a financing plan that demonstrates project completion with the

$950 million in Federal Maglev Funds, funds remaining unobligated from

the $55 million in contract authority, and the funds made available

under STP and CMAQ. The project that is selected will be eligible for

other forms of financial assistance provided under title 23 and TEA 21,

including loans, loan guarantees, and lines of credit. However, at

least \1/3\ of Full Project Costs must come from non-Federal Funds.

(5) Project Management. The State, the technology owner, and all

other relevant project partners must include in the project

description, an agreed upon--

(i) Management plan that defines the partnership, responsibilities,

and procedures for accomplishing the project;

(ii) Project schedule that shows how timely implementation of the

project will be accomplished, including, to the extent possible, a

construction plan and schedule; and

(iii) Financial plan that shows how funds will flow, in accordance

with the other requirements of this subsection.

(6) Planning/environmental process.

(i) Assessment of environmental consequences of the proposed

project. Recipients of preconstruction planning grants shall conduct an

EA in support of the project description; and will prepare additional

environmental studies for the project. The EA shall include information

to support the grantee's decision to pursue the proposed project. The

grantee shall develop the information and discuss the environmental

consequences of the proposed technology and route in sufficient detail

for the preparation of appropriate documentation by FRA to support

selection of one project. This shall include: the identification of

potential positive and negative environmental effects resulting from

the technology (e.g. energy consumption compared to other

transportation options); generic noise emissions at various distances

from the centerline of the guideway; changes in electromagnetic field

levels at various distances from the centerline of the guideway; and

environmental screening of the proposed route (e.g., identification of

land use; identification of endangered species possibly present and

location of their critical habitat; identification of navigable

waterways, wetlands and other sensitive water resources; and

identification of the location of parks, wildlife refuges, historic and

archaeological sites of National, State or local significance and other

sites protected by section 4(f) of the Department of Transportation

Act). The latter information and analysis shall be submitted four

months in advance of the remainder of the project description. The

above list is illustrative only. Grantees will be expected to review

proposed work statements with FRA at pre-application meetings or

through some other means to develop the final scope of this

environmental review.

(ii) The project description must also include letters of

endorsement of project implementation from all the State departments of

transportation involved, and from all Metropolitan Planning

Organizations for metropolitan areas that would be served by the

project.

Sec. 268.13 Deadline for submission of applications for

preconstruction planning assistance.

Completed application packages shall be returned to FRA by December

31, 1998. Applications shall be submitted to: Honorable Jolene M.

Molitoris, Administrator, Federal Railroad Administration, ATTN: Maglev

Project, RDV-11, 400 Seventh Street, SW, Stop 20,Washington, DC 20590.

Sec. 268.15 Form and contents of applications for preconstruction

planning assistance.

States, groups of States, or designated authorities that have

Maglev projects are invited to submit applications in Phase I of the

Maglev Deployment Program, the competition for preconstruction planning

grants. The applications shall contain:

(a)(1) If submitted by a State: name, address, responsible party,

telephone, fax number, and e-mail address of the State agency

submitting the application; or

(2) If submitted by a designated authority: name, address,

responsible party, telephone, fax number, and e-mail address of the

designated authority and of the State agency or agencies on whose

behalf the designated authority is submitting the application, together

with letters from the State(s) evidencing all such designations;

(b) A description of the project concept, identifying its likely

location, market area, length, and the transportation service that it

would perform, and a preliminary estimate of the time that would be

required--if funds are made available--to bring the project to the

start of construction and then to the initiation of full revenue

service. At its option, the applicant may include any reports already

completed on the project as well as any additional descriptive material

that would assist the FRA in evaluating the application;

(c) Whatever information the applicant has to demonstrate that the

project meets the project eligibility standards in Sec. 269.11(a), and

the project selection criteria in Sec. 268.17. together with a

certification that the applicant fully intends to comply with the

requirements in Sec. 269.11 should its project be selected by FRA for

final design, engineering and construction financing.

(d) A statement of work for the preconstruction planning activities

to be accomplished under the planning grant. The statement shall

describe the work to be performed, including but not necessarily

limited to:

(1) Preconstruction planning work as is needed to develop a Maglev

project, and project description that will satisfy the project

eligibility standards in Sec. 268.11(b), and the project selection

criteria in Sec. 268.17; and

(2) Preparation of EAs, as described in Sec. 268.11(b)(6)(i);

(e) Management plan, schedule, and financial plan for accomplishing

the preconstruction planning work under the planning grant;

(f) Letters supporting the application from the heads of all State

departments of transportation involved, as well as from responsible

officials of the Metropolitan Planning Organizations of all

metropolitan areas to be served by the proposed project;

(g) A certification from the State, or from the authority

designated by one or more States, that the \1/3\ matching funds

required for work under the planning grant are, or will be, available

by the time the grants are announced. The source(s) of the matching

must be shown in the financial plan under paragraph (e); and

(h) If the applicant has made a definitive choice of the particular

Maglev technology proposed to be included, a description of that

technology and the degree to which it has been produced and tested

should be submitted. Further, if the applicant has identified

organizations that would form members of the team that would implement

the project, the names of those organizations and the persons

[[Page 2348]]

representing them should also be submitted.

Sec. 268.17 Project selection criteria.

Except as qualified by Sec. 268.19, the following criteria will

govern FRA's selection of projects to receive funding under the Maglev

Deployment Program.

(a) Purpose and significance of the project.

(1) The degree to which the project description demonstrates

attractiveness to travelers, as measured in passengers and passenger-

miles.

(2) The extent to which implementation of the project will reduce

congestion, and attendant delay costs, in other modes of

transportation; will reduce emissions and/or energy consumption; or

will reduce the rate of growth in needs for additional highway or

airport construction. Measures for this criterion will include but not

be limited to the present value of congestion reduction, pollution

reduction, and/or facility cost-avoidance benefits.

(3) The degree to which the project will demonstrate the variety of

operating conditions which are to be expected in the United States.

(4) The degree to which the project will augment a Maglev corridor

or network that has been identified, by any State, group of States, or

the FRA, as having Partnership Potential.

(b) Timely implementation. The speed with which the project can

realistically be brought into full revenue service, based on the

project description and on the current and projected development status

of the Maglev technology selected by the applicant for the project.

(c) Benefits for the American economy. The extent to which the

project is expected to create new jobs in traditional and emerging

industries in the United States.

(d) Partnership potential. The degree to which the project

description demonstrates Partnership Potential for the corridor in

which it is involved, and/or for the project independently.

(e) Funding limits and sources.

(1) The extent and proportion to which States, regions, and

localities commit to financially contributing to the project, both in

terms of their own locally-raised, entirely non-Federal funds, and in

terms of commitments of scarce Federal resources from non-Maglev funds;

and

(2) The extent and proportion to which the private sector

contributes financially to the project.

Note to Sec. 268.17: FRA recognizes that applicants for

preconstruction planning assistance may not have detailed

information with respect to each of these criteria, and that the

purpose of the preconstruction planning assistance is to develop

much of this information with respect to a particular Maglev

project. The preconstruction planning application requirements of

this part 268 are designed to elicit whatever information an

applicant may have pertaining to these criteria.

Sec. 268.19 Evaluation of applications for preconstruction planning

assistance.

The FRA will evaluate the applications for their completeness and

responsiveness to the requirements listed in Sec. 268.15. In addition,

applicants are advised that the Maglev Deployment Program contains a

number of project eligibility standards (minimum threshold standards)

and project evaluation criteria that will guide the FRA's review of the

project descriptions produced under the Planning Grants. The FRA's

implementation of these standards and criteria appears in Sec. 268.11

and Sec. 268.17, respectively. Although subject to revision, the

information in Sec. 268.11 and Sec. 268.17 should assist the States in

completing their applications in the competition for planning grants,

since the project descriptions will need to respond to the standards

and criteria. In evaluating the applications for planning grants, FRA

will consider how consistent the applicant's project is to the

standards and criteria, and the application's likelihood of leading to

a project that meets all the standards and criteria.

Sec. 268.21 Down-selection of one or more Maglev projects for further

study and selection of one project for final design, engineering, and

construction funding.

(a) Upon completion of Phase III of the Maglev Deployment Program,

FRA will down-select one or more projects to complete additional

environmental studies, investment grade revenue forecasts, and other

studies and analyses necessary prior to initiation of construction.

Final design and engineering work will also be initiated for the down-

selected project(s). To be down-selected a project must appear to meet

the project eligibility standards contained in Sec. 268.11 (b), rate

highly in the project selection criteria specified in Sec. 268.17, be

judged by FRA to have a good chance of being constructed with the

Federal funds authorized for this program, and be successfully operated

by a public/private partnership.

(b) Only one project will be selected in Phase IV of the Maglev

Deployment Program and be eligible for any Federal construction funds

that Congress chooses to make available. That one project must meet

each and every project eligibility standard contained in Sec. 268.11

(b). If more than one project down-selected in Phase III and funded

through Phase IV meets all of these standards, then FRA will evaluate

and compare the eligible projects according to the set of project

selection criteria contained in Sec. 268.17.

(c) In reviewing competing projects under the project eligibility

standards and project selection criteria, the FRA will exercise

particular vigilance regarding the following elements of the

preconstruction planning process, although not to the exclusion of

others:

(1) The credibility of the demand and revenue forecasts, cost

estimates, and benefit/cost comparisons; and

(2) The credibility of the financial plan.

(d) FRA intends to make periodic reviews of the processes and

products of grant recipients. Such reviews may include, at the FRA's

option, reviews at key milestones in the preparation of project

descriptions.

Issued in Washington, DC on January 4, 2000.

Jolene M. Molitoris,

Federal Railroad Administrator.

[FR Doc. 00-613 Filed 1-13-00; 8:45 am]

BILLING CODE 4910-06-P