[Federal Register Volume 65, Number 104 (Tuesday, May 30, 2000)]
[Proposed Rules]
[Pages 34428-34432]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 00-13271]



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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 80

[OST Docket No. 2000-7401]
RIN 2105-AC84


Credit Assistance for Surface Transportation Projects

AGENCY: Office of the Secretary, Department of Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: The DOT proposes to revise certain provisions of the 
regulations concerning the Transportation Infrastructure Finance and 
Innovation Act of 1998 (TIFIA) as follows: Assign specific weights to 
each of the eight statutory selection criteria; specify that loan 
servicing fees are to be paid by the borrower; modify the time period 
for audited financial statements from 120 days to 180 days; provide 
that, consistent with the statutory intent of the TIFIA program, 
administrative offsets will be employed only in cases of fraud, 
misrepresentation, or criminal acts, but will not be employed as a 
result of revenue shortfalls; clarify that funds will be disbursed 
based on the project's financing needs; clarify that the borrower must 
satisfy the statute's investment grade rating requirement prior to both 
the execution of a credit agreement and the funding of each secured 
loan disbursement; and clarify that the borrower must obtain ongoing 
credit surveillance for the life of the TIFIA credit instrument. These 
proposed revisions are made at the DOT's initiative to clarify certain 
aspects of the regulations based on experience from the first year of 
program implementation.

DATES: Comments must be submitted on or before June 29, 2000.

ADDRESSES: Your signed, written comments must refer to the docket 
number appearing at the top of this document and must be submitted to 
the Docket Clerk, US DOT Dockets, Room PL-401, 400 Seventh Street, SW., 
Washington, DC 20590-0001. All comments received will be available for 
examination at the above address between 9 a.m. and 5 p.m., e.t., 
Monday through Friday, except Federal holidays. Those desiring 
notification of receipt of comments must include a self-addressed, 
stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: Mr. Bryan Grote, Office of the 
Assistant Secretary for Budget and Programs, (202) 366-9656; Ms. 
Stephanie Kaufman, Office of Budget and Programs Performance, (202) 
366-9649; or Mr. Terence Carlson, Office of the General Counsel, (202) 
366-9161. Department of Transportation, 400 Seventh Street, SW., 
Washington, DC, 20590. Office hours are from 7:45 a.m. to 4:15 p.m., 
e.t., Monday through Friday, except Federal holidays. Hearing-and 
speech-impaired persons may access this number via TTY by calling the 
Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users may access all comments received by the US DOT 
Dockets, by using the universal resource locator (URL) http://
dms.dot.gov. It is available 24 hours each day, 365 days each year. 
Please follow the instructions on-line for more information and help. 
An electronic copy of this document may be downloaded using a modem and 
suitable communications software from the Government Printing Office's 
Electronic Bulletin Board Service at (202) 512-1661. Internet users may 
reach the Office of the Federal Register's home page at http://
www.nara.gov/fedreg and the Government Printing Office's web page at 
http://www.access.gpo.gov/nara.
    Additional general information on the TIFIA program and credit 
assistance for surface transportation projects is available on the 
TIFIA web site at 
http://tifia.fhwa.dot.gov.

Background

    The Transportation Equity Act for the 21st Century (TEA-21), Public 
Law 105-178, 112 Stat. 107, created the Transportation Infrastructure 
Finance and Innovation Act of 1998 (TIFIA). The TIFIA, as amended by 
section 9007, Public Law 105-206, 112 Stat. 685, 849 and codified at 23 
U.S.C. 181-189, authorizes the Department of Transportation (DOT) to 
provide credit assistance in the form of secured direct loans, lines of 
credit, and loan guarantees to public and private sponsors of eligible 
surface transportation projects. The TIFIA regulations (49 CFR part 80) 
provide specific guidance on the program requirements. In addition, the 
TIFIA Program Guide is available for more general information. Both 
funding (budget authority) and credit assistance authority for this 
program are limited, and projects seeking assistance are evaluated and 
selected by the DOT on a competitive basis. Following selections, term 
sheets are issued and credit agreements are developed through 
negotiations between the project sponsors and the DOT.
    The TIFIA authorizes annual levels for both credit assistance (as 
measured by the principal amounts of the secured loans, guaranteed 
loans, or lines of credit) and subsidy amounts (i.e., the amounts of 
budget authority available to cover the estimated present value of the 
Government's expected losses associated with the provision of credit 
instruments, net of any fee income). Funding for the subsidy amounts is 
provided in the form of budget authority appropriated from the Highway 
Trust Fund, other than the Mass Transit Account.
    Total Federal credit assistance amounts authorized for the TIFIA 
program are $1.8 billion in FY 2000; $2.2 billion in FY 2001; $2.4 
billion in FY 2002; and $2.6 billion in FY 2003. These amounts lapse if 
they are not awarded by the end of the fiscal year for which they are 
provided.
    To support these credit assistance amounts, the TIFIA provides 
budget authority to fund the required subsidy amounts of $90 million in 
FY 2000; $110 million in FY 2001; $120 million in FY 2002; and $130 
million in FY 2003. Of these amounts, the Secretary may use up to $2 
million for each of the fiscal years for administrative expenses. Any 
budget authority that is not obligated in the fiscal year for which it 
is authorized remains available for obligation in subsequent years.
    The TIFIA budget authority is subject to an annual obligation 
limitation that may be established in appropriations law. Like the 
funding for certain other administrative or allocated programs (not 
apportioned to the States) that are subject to the annual Federal-aid 
highway obligation limitation, the amount of TIFIA budget authority 
that is available to fund credit instruments in a given year may be 
less than the amount originally authorized for that year. The extent of 
any budget authority reduction will depend on the ratio of the 
obligation limitation, which is determined annually in the 
appropriations process, to the contract authority for the Federal-aid 
highway program, which was established in TEA-21. For FY 2000, this 
reduction is 12.9 percent, or $11.6 million. The credit assistance 
amounts authorized in the TIFIA are not subject to this annual 
reduction.
    The DOT expects that approximately $81 million in net budget 
authority will be available in FY 2000 to fund the TIFIA credit 
assistance program. This approximation takes into account unused FY 
1999 budget authority, the

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reduction in FY 2000 budget authority due to the annual obligation 
limitation, and administrative expenses authorized by the TIFIA 
statute. The amount of net budget authority available for new TIFIA 
commitments in FY 2000 may also be affected by credit subsidy 
adjustments to obligations for prior TIFIA commitments.
    The total amount of Federal credit assistance available for new 
TIFIA commitments in FY 2000 is about $1.673 billion, which is less 
than the $1.8 billion authorization level as a result of TIFIA 
contingent commitments made in FY 1999. The size of the annual TIFIA 
program may be limited by either budget authority or credit assistance 
authorization, depending on the risk assessments made for individual 
projects selected for that fiscal year's program.

Credit Instruments

    Three types of credit instruments are permitted under the TIFIA: 
secured direct loans, loan guarantees, and lines of credit, as provided 
for generally at 23 U.S.C. 183 and 184. More specific terms for 
individual projects will be determined during negotiations between the 
DOT and successful applicants.

Eligible Projects

    Highway, rail, transit, and intermodal projects may receive credit 
assistance under the TIFIA. See the definition of ``project'' in 23 
U.S.C. 181(9) and 49 CFR 80.3 for a description of eligible projects.

Threshold Criteria

    Certain threshold criteria must be met by projects seeking TIFIA 
assistance. These eligibility criteria are detailed in 23 U.S.C. 182(a) 
and 49 CFR 80.13.

Limitations on Assistance

    The amount of credit assistance that the DOT may provide to a 
project under the TIFIA is limited to not more than 33 percent of 
eligible project costs.

Rating Opinions

    A project sponsor must submit a preliminary rating opinion letter 
from one or more of the nationally recognized credit rating agencies 
with its application, as detailed in 23 U.S.C. 182(b)(2)(B) and 49 CFR 
80.11. The preliminary rating opinion letter will confirm the potential 
for the project's senior debt obligations to achieve an investment 
grade rating and provide an assessment of the default risk on the 
requested TIFIA credit instrument. Projects selected for TIFIA credit 
assistance must obtain an investment grade rating on the senior debt 
obligations and a revised opinion of the default risk on the TIFIA 
credit instrument before the DOT will execute a credit agreement and 
disburse funds.

Application Process

    Detailed application information is contained in the TIFIA Program 
Guide and the TIFIA Application for Credit Assistance, which are posted 
on the TIFA web site at http://tifia.fhwa.dot.gov or which may be 
obtained through one of the DOT program contacts listed in this notice. 
From time to time, the TIFIA Program Guide and Application may be 
revised to reflect program clarifications. Applicants are encouraged to 
refer to the TIFIA web site or to TIFIA program contacts for 
information regarding recent program clarifications.

Fees

    The DOT requires payment of a non-refundable fee with each credit 
assistance application under the TIFIA. For FY 2000, the DOT will 
assess an application fee of $5,000 for each project applying for 
credit assistance; however, there will be no additional credit 
processing fee for FY 2000. For fiscal years 2001 and beyond, the DOT 
may adjust the amount of the application fee and will determine the 
appropriate amount of any potential credit processing fee or any other 
fee based on program implementation experience. The DOT will publish 
these amounts in each Federal Register solicitation for applications.

Proposed Clarifications

The Timing of Loan Disbursements

    The DOT clarifies that for each TIFIA credit instrument, the DOT 
will execute a credit agreement (i.e., loan agreement, guarantee 
agreement, or line of credit agreement) with the project sponsor. The 
credit agreement will specify the total amount of credit assistance to 
be made available, the timing of the loan disbursements, and the terms 
and conditions, including security provisions, pursuant to which the 
funding is provided. Secured loan funds will be advanced according to a 
project schedule included in the credit agreement based on the 
project's financing needs.

Loan Servicing Fees

    The TIFIA statute allows the Secretary to ``establish fees at a 
level sufficient to cover all or a portion of the costs to the Federal 
Government'' of providing credit instruments. Under this clarification, 
the DOT will require each borrower to pay servicing fees for each 
credit instrument approved for funding. Separate fees will apply for 
each type of credit instrument (e.g., a loan guarantee, a secured loan 
with a single disbursement, a secured loan with multiple disbursements, 
or a line of credit), depending on the costs of the credit instrument, 
as determined by the Secretary.

Administrative Offset

    Some State and local government representatives as well as private 
project sponsors have informally indicated to the DOT that they would 
be reluctant to enter into a TIFIA credit agreement because they 
believe that the DOT would administratively offset amounts owed to the 
DOT should a project go into default. This proposed rulemaking 
clarifies that, consistent with the statutory intent of the TIFIA 
program, administrative offsets will be employed only in cases of 
fraud, misrepresentation, false claims, or similar criminal acts or 
acts of malfeasance or wrongdoing, and will not be employed as a result 
of revenue shortfalls.
    While an administrative offset of Federal funds for moneys 
otherwise due a State or local government or private entity is 
available to the DOT under Federal common law, the DOT believes that 
use of an administrative offset to insure against project-related 
credit losses would substantially interfere with or defeat the purposes 
of the TIFIA program.

Investment Grade Ratings

    The DOT clarifies that the requirement that the project's senior 
debt obligations have an investment grade rating from a major credit 
rating agency is a condition both for the DOT's execution of the credit 
agreement and for its funding of each loan disbursement under a secured 
loan agreement. The DOT also wishes to clarify that the borrower must 
provide for ongoing credit surveillance from a major credit rating 
agency throughout the life of the TIFIA credit instrument. Borrowers 
will provide any credit surveillance reports to the DOT as soon as they 
become available.

Proposed Changes

Selection Criteria

    The current TIFIA rule specifies, in Sec. 80.15(c), that ``the 
Secretary shall evaluate each project's distinct public benefits and 
contribution to program goals according to each of the selection 
criteria specified in this section.'' With this rulemaking, the DOT 
assigns specific weights to the eight selection criteria established in 
23 U.S.C.

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182(b)(2). The DOT proposes to give the highest weight, 20 percent, to 
each criterion it believes is most closely aligned with the objectives 
of the program: Demonstration of national or regional significance; 
extent of private participation; and environmental impacts. The next 
two criteria, each of which is assigned a weight of 12.5 percent, are 
also critical to achieving the objectives of the program: Project 
creditworthiness and project acceleration. Given that this program 
already has a threshold requirement for creditworthiness, the DOT 
considers 12.5 percent to be an adequate weight. (For a project to be 
selected to receive TIFIA assistance, it must first obtain a 
preliminary rating opinion letter from a nationally recognized rating 
agency indicating that the project has the potential of achieving an 
investment grade rating. Once selected, a project must obtain and 
maintain an investment grade credit rating on its senior debt 
obligations prior to the release of TIFIA funds.) Finally, the DOT 
proposes to assign a weight of 5 percent to each of the remaining 
criteria: Use of new technologies; consumption of budget authority; and 
reduction of Federal grant assistance.

Reporting Requirements

    The DOT proposes to increase the number of days for submitting an 
annual project performance report and audited financial statements from 
120 days to 180 days following the recipient's fiscal year-end for each 
year during which the recipient's obligation to the Federal Government 
remains in effect. The 180-day reporting requirement is consistent with 
industry practice for financial reporting.

Rulemaking Analysis and Notices

    The 30-day comment period is necessary to help ensure that these 
rule modifications can be implemented in time for the application cycle 
anticipated to begin before the end of the current fiscal year. Given 
the need for the DOT to solicit and evaluate applications, make 
selections, negotiate term sheets and obligate funds, the usual 60-day 
comment period is both impracticable and contrary to public interest 
and Congressional intent.
    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination using the docket number appearing at the top of this 
document in the docket room at the above address. The DOT will file 
comments received after the comment closing date in the docket and will 
consider late comments to the extent practicable. The DOT may, however, 
issue a Final Rule at any time after the close of the comment period. 
In addition to late comments, the DOT will also continue to file in the 
docket relevant information becoming available after the comment 
closing date. Interested persons should continue to examine the docket 
for new material.

Executive Order 12866 (Regulatory Planning And Review) and DOT 
Regulatory Policies and Procedures

    The DOT has determined that issuance of a rule is necessary to 
implement the TIFIA, and has concluded that this action does not 
represent a ``significant regulatory action'' within the meaning of 
DOT's Regulatory Policies and Procedures (44 FR 11034, February 26, 
1979) and Executive Order 12866.
    This section summarizes the estimated economic impact of the 
proposed rule. This regulation would affect only those entities that 
voluntarily elect to apply for TIFIA assistance and are selected to 
receive assistance through a Federal credit instrument. It would not 
impose any direct involuntary costs on non-participants. These proposed 
changes would have a minimal economic impact. The DOT requests 
comments, information, and data from the public and potential users 
concerning the economic impact of the proposed changes to this rule and 
the TIFIA program.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (Public Law 96-354, 5 U.S.C. 
601-612) requires an assessment of the extent to which proposed rules 
will have an impact on small business or other small entities. 
Consistent with the Regulatory Flexibility Act, the DOT has evaluated 
the effects of this rule on small business or other small entities. The 
NPRM proposes to clarify certain provisions of the Federal credit 
assistance program for surface transportation projects. As noted above, 
the proposed revisions would have minimal economic impact. The DOT 
hereby certifies that this action would not have significant economic 
impact on a substantial number of small entities. The DOT invites 
public comment on this determination.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Public Law 104-4) 
requires agencies to prepare a written assessment of the costs, 
benefits and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local or 
tribal governments, in the aggregate, or by the private sector, of more 
than $100 million annually. This proposed rule would not impose a 
Federal mandate resulting in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year. This rule clarifies certain provisions 
of a Federal credit assistance program.

Executive Order 12372 (Intergovernmental Review)

    Given that projects receiving assistance under the TIFIA may fall 
under the programmatic jurisdiction of the Federal Highway 
Administration, the Federal Railroad Administration, or the Federal 
Transit Administration, the relevant Catalog of Federal Domestic 
Assistance Program Numbers are: 20.205 highway planning and 
construction; 20.310 rail rehabilitation and improvement; and 20.500 
transit capital improvement grants. The regulations implementing 
Executive Order 12372 regarding intergovernmental consultation on 
Federal programs and activities apply to this program.

Paperwork Reduction Act

    This document does not contain information collection requirements 
for the purposes of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

National Environmental Policy Act

    As specified under section 1503 of the TIFIA, and codified under 
section 182(c)(2) of title 23, U.S.C., each project obtaining 
assistance under this program is required to adhere to the National 
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.). 
This rulemaking simply proposes to clarify the procedures to apply for 
credit assistance and therefore, by itself, will not have any effect on 
the quality of the environment.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 dated August 4, 1999, and 
it has been determined this action does not have substantial direct 
effect or sufficient federalism implications on States that would limit 
the policy-making discretion of the States. Nothing in this document 
directly preempts any State law or regulation.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in section 3(a) and 3(b)(2) 
of

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Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    The DOT has analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and does not 
concern any environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document may be used to cross-reference this action with the 
Unified Agenda.

List of Subjects in 49 CFR Part 80

    Credit programs-transportation, Highways and roads, Mass transit, 
Railroads, Investments, Reporting and recordkeeping requirements.

    In consideration of the foregoing, the Office of the Secretary of 
Transportation proposes to amend 49 CFR part 80 as set forth below:

PART 80--[AMENDED]

    1. The authority citation for part 80 continues to read as follows:

    Authority: Secs. 1501 et seq., Pub.L. 105-178, 112 Stat. 107, 
241, as amended; 23 U.S.C. 181-189 and 315; 49 CFR 1.48, 1.49, and 
1.51.

    2. Amend Sec. 80.3 by adding the definition administrative offset 
and by placing it in alphabetical order to read as follows:


Sec. 80.3  Definitions.

* * * * *
    Administrative offset means the right of the government to apply 
moneys held by the government and otherwise owed to a debtor for the 
extinguishment of claims due the government from the debtor.
* * * * *
    3. Add Sec. 80.5(g) to read as follows:


Sec. 80.5  Limitations on assistance.

* * * * *
    (g) The Secretary shall fund a secured loan based on the project's 
financing needs. The timing of such loan disbursements shall be 
established in the credit agreement.
    4. Revise Sec. 80.11 to read as follows:


Sec. 80.11  Investment-grade ratings.

    (a) At the time a project sponsor submits an application, the DOT 
shall require a preliminary rating opinion letter. This letter is a 
conditional credit assessment from a rating agency that provides a 
preliminary indication of the project's overall creditworthiness and 
that specifically addresses the potential of the project's senior debt 
obligations (those obligations having a lien senior to that of the 
TIFIA credit instrument on the pledged security) to achieve an 
investment-grade rating.
    (b) The DOT shall disburse funds under a secured loan or line of 
credit or extend a loan guarantee only after the project's senior 
obligations have obtained an investment grade rating and a credit 
agreement has been executed. In cases where the TIFIA credit instrument 
has a senior lien on the pledged security, an investment grade rating 
must be assigned to the TIFIA obligations. For a secured loan, the 
execution of a credit agreement and the funding of each loan 
disbursement thereunder shall be conditioned on the receipt of an 
investment grade rating on the project's senior debt obligations by a 
nationally recognized credit rating agency.
    (c) * * *
    (d) The project sponsor must provide, at its own expense, ongoing 
credit surveillance of its project and debt obligations from a 
nationally recognized credit rating agency throughout the life of its 
TIFIA credit instrument. The project sponsor will share any credit 
surveillance reports with the DOT as soon as they are available.
    5. Amend Sec. 80.15 by revising paragraph (a), by removing 
paragraphs (c) and (d); and by redesignating paragraph (e) as paragraph 
(c) to read as follows:


Sec. 80.15  Selection criteria.

    (a) The Secretary shall assign weights as indicated to the 
following eight selection criteria in evaluating and selecting among 
eligible projects to receive credit assistance:
    (1) The extent to which the project is nationally or regionally 
significant, in terms of generating economic benefits, supporting 
international commerce, or otherwise enhancing the national 
transportation system (20 percent);
    (2) The creditworthiness of the project, including a determination 
by the Secretary that any financing for the project has appropriate 
security features, such as a rate covenant, to ensure repayment (12.5 
percent);
    (3) The extent to which such assistance would foster innovative 
public-private partnerships and attract private debt or equity 
investment (20 percent);
    (4) The likelihood that such assistance would enable the project to 
proceed at an earlier date than the project would otherwise be able to 
proceed (12.5 percent);
    (5) The extent to which the project uses new technologies, 
including Intelligent Transportation Systems (ITS), that enhance the 
efficiency of the project (5 percent);
    (6) The amount of budget authority required to fund the Federal 
credit instrument made available (5 percent);
    (7) The extent to which the project helps maintain or protect the 
environment (20 percent); and
    (8) The extent to which such assistance would reduce the 
contribution of Federal grant assistance to the project (5 percent).
* * * * *
    6. Revise Sec. 80.17 to read as follows:


Sec. 80.17  Fees.

    (a) The DOT will require a non-refundable application fee for each 
project applying for credit assistance under the TIFIA. The DOT may 
also require an additional credit processing fee for projects selected 
to receive TIFIA assistance. Any required application initiation or 
credit processing fee must be paid by the project sponsor applying for 
TIFIA assistance and cannot be paid by another party on behalf of the 
project sponsor. The proceeds of any such fees will equal a portion of 
the costs to the Federal Government of soliciting and evaluating 
applications, selecting projects to receive assistance, and negotiating 
credit agreements. For FY 2000, the DOT will require payment of a fee 
of $5,000 for each project applying for credit assistance under the 
TIFIA, to be submitted concurrently with the formal application. The 
DOT will not impose any credit processing fees for FY 2000. For each 
application and approval cycle in FY 2001 and beyond, the DOT may 
adjust the amount of the application fee and will determine the 
appropriate amount of the credit processing fee based on program 
implementation experience. The DOT

[[Page 34432]]

will publish these amounts in each Federal Register solicitation for 
applications.
    (b) Applicants shall not include application initiation or credit 
processing fees or any other expenses associated with the application 
process (such as fees associated with obtaining the required 
preliminary rating opinion letter) among eligible project costs for the 
purpose of calculating the maximum 33 percent credit amount referenced 
in Sec. 80.5(a).
    (c) If, in any given year, there is insufficient budget authority 
to fund the credit instrument for a qualified project that has been 
selected to receive assistance under TIFIA, the DOT and the approved 
applicant may agree upon a supplemental fee to be paid by or on behalf 
of the approved applicant at the time of execution of the term sheet to 
reduce the subsidy cost of that project. No such fee may be included 
among eligible project costs for the purpose of calculating the maximum 
33 percent credit amount referenced in Sec. 80.5(a).
    (d) The DOT will require borrowers to pay servicing fees for each 
credit instrument approved for funding. Separate fees may apply for 
each type of credit instrument (e.g., a loan guarantee, a secured loan 
with a single disbursement, a secured loan with multiple disbursements, 
or a line of credit), depending on the costs of servicing the credit 
instrument as determined by the Secretary. Such fees will be set at a 
level to enable the DOT to recover all or a portion of the costs to the 
Federal Government of TIFIA credit instruments.
    7. Revise Sec. 80.19 to read as follows:


Sec. 80.19  Reporting requirements.

    At a minimum, any recipient of Federal credit assistance under this 
part shall submit an annual project performance report and audited 
financial statements to the DOT within 180 days following the 
recipient's fiscal year-end for each year during which the recipient's 
obligation to the Federal Government remains in effect. The DOT may 
conduct periodic financial and compliance audits of the recipient of 
credit assistance, as determined necessary by the DOT. The specific 
credit agreement between the recipient of credit assistance and the DOT 
may contain additional reporting requirements.
    8. Add Sec. 80.21 to read as follows:


Sec. 80.21  Use of administrative offset.

    The DOT will not apply an administrative offset to recover any 
losses to the Federal Government resulting from project risk the DOT 
has assumed under a TIFIA credit instrument. The DOT may, however, use 
an administrative offset in cases of fraud, misrepresentation, false 
claims, or similar criminal acts or acts of malfeasance or wrongdoing.

    Issued on: May 15, 2000.
Rodney E. Slater,
Secretary of Transportation.
[FR Doc. 00-13271 Filed 5-26-00; 8:45 am]
BILLING CODE 4910-62-P