Notice2023-00508
Guidance on Development and Implementation of Railroad Capital Projects
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 12, 2023
Issuing agencies
Transportation DepartmentFederal Railroad Administration
Abstract
FRA is publishing final guidance on the development and implementation of railroad capital projects that may be funded, in whole or in part, by FRA ("final guidance"). This final guidance follows publication of the proposed guidance ("proposed guidance") on June 28, 2022.
Full Text
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<title>Federal Register, Volume 88 Issue 8 (Thursday, January 12, 2023)</title>
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[Federal Register Volume 88, Number 8 (Thursday, January 12, 2023)]
[Notices]
[Pages 2163-2166]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00508]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[Docket No. FRA-2022-0035]
Guidance on Development and Implementation of Railroad Capital
Projects
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of final guidance.
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SUMMARY: FRA is publishing final guidance on the development and
implementation of railroad capital projects that may be funded, in
whole or in part, by FRA (``final guidance''). This final guidance
follows publication of the proposed guidance (``proposed guidance'') on
June 28, 2022.
ADDRESSES: The final guidance is available at <a href="https://regulations.gov">https://regulations.gov</a>
under docket number FRA-2022-0035.
FOR FURTHER INFORMATION CONTACT: For further information, please
contact Mr. David Valenstein, Office of Railroad Development, at
<a href="/cdn-cgi/l/email-protection#096d687f606d277f68656c677a7d6c6067496d667d276e667f"><span class="__cf_email__" data-cfemail="0165607768652f77606d646f727564686f41656e752f666e77">[email protected]</span></a> or 202-493-6368; or Mr. Michael Longley,
Office of Rail Program Development, at <a href="/cdn-cgi/l/email-protection#87eaeee4efe6e2eba9ebe8e9e0ebe2fec7e3e8f3a9e0e8f1"><span class="__cf_email__" data-cfemail="6d00040e050c0801430102030a0108142d090219430a021b">[email protected]</span></a> or 202-
493-6377.
SUPPLEMENTARY INFORMATION:
I. Overview
Over the next five years, the Infrastructure Investment and Jobs
Act (IIJA) (Pub. L. 117-58, also known as the ``Bipartisan
Infrastructure Law'') will provide unprecedented Federal funding
[[Page 2164]]
for rail improvement projects in America. As a result, FRA has
identified the need to establish clear practices and procedures for the
development and implementation of railroad capital projects through the
issuance of agency guidance. FRA published a notice of proposed
guidance titled Guidance on Development and Implementation of Railroad
Capital Projects (87 FR 38451, June 28, 2022) seeking stakeholder
feedback on the content and applicability of the proposed guidance.
FRA's consideration of comments and associated revisions to the
guidance are described in Section II. FRA is now publishing the final
guidance.
The final guidance will assist project sponsors in developing
effective capital projects and enhance the management of capital
projects. The audience of the final guidance includes project sponsors
and partners, as well as the wide range of professionals who contribute
to the planning, development, and implementation of railroad capital
projects. The final guidance: (1) defines the stages in the railroad
capital project lifecycle and project development process from
inception to operation; (2) describes the project management tools,
processes, and documentation that FRA requires when providing grants
that fund the development or implementation of a railroad capital
project; (3) differentiates between Non-Major projects and Major
projects by defining a ``Major Project'' as a railroad capital project
with a Capital Cost Estimate equal to or greater than $500 million and
with at least $100 million in total Federal assistance.
FRA strongly encourages project sponsors to follow the final
guidance when developing, implementing, and managing railroad capital
projects. FRA may use the final guidance to inform its grant
application reviews and decisions in accordance with a process
described in a notice of funding opportunity for the relevant grant
program and may require compliance with the guidance as part of grant
agreements funding railroad capital projects in accordance with 2 CFR
parts 200 and 1201. The practices contained in the guidance draw from
FRA's experience and from established programs of other DOT operating
administrations that have enhanced the delivery of major highway and
transit projects.
FRA is adopting the guidance largely as it was proposed, with
changes to the guidance text as discussed in Section II.
II. Discussion of Public Comments
FRA received a total of nine comments on the proposed guidance:
eight generally supported the proposed guidance and provided feedback,
and one was considered outside of the scope of the proposed guidance.
FRA received comments from the following respondents: American
Association of State Highway and Transportation Officials (AASHTO);
American Public Transportation Association (APTA); National Railroad
Passenger Corporation (Amtrak); Association for Innovative Passenger
Rail Operations (AIPRO); Brotherhood of Maintenance of Way Employees
Division/International Brotherhood of Teamsters (BMWED/IBT); California
High-Speed Rail Authority (CHSRA); Front Range Passenger Rail District
(comments were intended for Docket #FRA-2022-0031 and are not addressed
here); Metropolitan Transportation Authority (MTA); and New Jersey
Transit (NJT).
A. Definitions
Several commenters provided feedback on the definitions established
in Section II of the proposed guidance, as summarized below.
1. Major Project, Section II(a). The proposed guidance defined
``major project'' as a railroad capital project with an estimated total
project cost equal to, or greater than, $300 million, and receiving at
least $100 million in Federal assistance. CHSRA, Amtrak, and APTA
suggested a change from the $300 million total project cost threshold
to $500 million for consistency with the Federal Highway Administration
(FHWA) definition and the USDOT Mega grant program.\1\ Amtrak also
suggested amending the cutoff in Federal assistance from $100 million
to $250 million for Major Projects. FRA agrees there is value in
creating consistency with FHWA and Mega program definitions and
therefore changed the major project definition threshold from $300
million to $500 million in the final guidance. However, the final
guidance retains the secondary threshold of $100 million in Federal
assistance as it more closely aligns with the Federal threshold share
used by the Federal Transit Administration (FTA).
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\1\ The Mega program supports large, complex projects that are
difficult to fund by other means and are likely to generate national
or regional economic, mobility, or safety benefits. More information
on the Mega program can be found at <a href="https://www.transportation.gov/grants/mega-grant-program">https://www.transportation.gov/grants/mega-grant-program</a>.
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2. Project Sponsor, Section II(c). APTA recommended that FRA revise
the definition of Project Sponsor to allow for joint or multiple
sponsors. BMWED recommended adding compliance with FRA grant labor
requirements to the definition of project sponsor. FRA made no changes
to the definition of project sponsor in the final guidance. The
proposed definition is broad enough to accommodate multiple project
sponsors and the labor requirements described in BMWED's comment are
imposed through existing laws and authorities as well as through the
terms and conditions of individual grant agreements.
3. Capital Cost Estimate, Section II(f). APTA recommended including
operations and maintenance costs in the capital cost estimate. FRA made
no changes to the final guidance in response to this comment. The
capital cost estimate is for delivery of the capital project, which
typically does not include operations and maintenance costs. However,
those costs are accounted for elsewhere in the guidance. For example,
the project development stage includes analysis of benefits and costs
that would include operations and maintenance costs for the project. In
addition, maintenance costs are separately addressed in the project
management plan and the financial plan.
4. Financial Plan, Section II(g). The definition of financial plan
in the proposed guidance stated that for projects involving debt-based
financing, the financial plan identifies the up-front capital for the
project. MTA asked for clarification that the financial plan identifies
all project funds rather than the up-front capital. In response, FRA
revised the language in the definition in the final guidance to clarify
that the financial plan identifies all project funds for the project.
B. Application of the Guidance
APTA, MTA, and CHSRA sought clarification that project sponsors
should be able to self-certify compliance with the guidance (for
example, self-certify that stages have been completed, documentation
prepared, or program requirements have been met). FRA made no changes
to the proposed guidance in response to this comment. The final
guidance states that FRA will address application of the guidance in
grant agreements, including when FRA will permit self-certification.
CHSRA also suggested the guidance clarify that it would not apply
retroactively to projects that are already in development or subject to
a grant agreement. FRA did not make changes the final guidance in
response to this comment, since Section I(b) of the guidance states FRA
may require compliance with the guidance as part of grant agreements or
notice of funding opportunity.
[[Page 2165]]
C. Comments on Project Lifecycle
Several commenters provided feedback on the Project Lifecycle
Stages in Sections III and IV of the guidance, as summarized below.
1. Lifecycle Stages, Section III. APTA, Amtrak and CHSRA asked for
flexibility in combining stages and for clarity about when procurement
happens. Amtrak and CHSRA also asked about how innovative delivery
methods flow through and change the stages. In response, FRA revised
the final guidance to clarify that procurement may be initiated in the
project development stage of the lifecycle and specify that Project
Sponsors may use innovative contracting and delivery methods.
2. Project Planning, Section IV(b). Amtrak asked to change the
language about design in planning and project development to align with
their grant process. FRA made clarifying edits to the final guidance in
this section but did not make all changes requested, because FRA will
continue to work to align all grants, including those to Amtrak, with
this guidance.
3. Final Design, Section IV(d). Amtrak suggested including final
design as part of the development stages in the project lifecycle
rather than as part of the implementation stages. FRA did not change
the final guidance in response to this suggestion. The final guidance
is consistent with FRA's approach regarding final design and
construction as implementation stages in its grant programs.
4. Operations, Section IV(f). APTA suggested changing the name of
the final stage from ``Operation'' to ``Operation and Maintenance.'' In
response, FRA added a reference to maintenance in the description of
the operation stage in the final guidance.
D. Comments on Lifecycle Completion Measures
Several commenters provided feedback on the Project Lifecycle
Completion Measures in Section IV of the guidance. NJT proposed that
the guidance include ``commissioning'' as a part of construction
completion. FRA agrees and revised Section IV(e) of the final guidance
to include commissioning as part of construction completion.
Amtrak and CHSRA commented that criteria or processes for
determining completion of each lifecycle stage should be added to the
guidance. FRA did not add prescriptive criteria or processes that
determine the completion of each lifecycle stages in order to provide
flexibility for a range of projects.
E. Comments on Project Management Tools
Several commenters provided feedback on the Project Management
Tools in Section V of the guidance.
1. Project Management Plan (PMP), Section V(b). Several commenters
suggested that the PMP should allow for flexibility to define project
budgets. FRA finds that no change is necessary because the final
guidance does not specify how Project Sponsors structure budgets,
providing the appropriate flexibility. BMWED asked that that
statutorily mandated employee protections be recognized in the PMP. FRA
recognizes the importance of these statutorily mandated employee
protections but believes they are more appropriately addressed in the
context of the grant agreement and are thus outside of the scope of the
guidance. However, FRA added a workforce sub-plan element to the PMP
for major projects to address railroad labor forces required to
implement the project, if applicable.
2. Capital Cost Estimate, Section V(d). NJT, APTA, and MTA
commented that the capital cost estimate should use a midpoint of
construction instead of year-of-expenditure. FRA agrees and revised the
text accordingly. MTA suggested the final guidance specify that the
independent party conducting major project risk reviews may be Project
Sponsor internal staff independent from the project team. FRA did not
incorporate the suggestion to allow Project Sponsor staff to conduct
the risk review into the final guidance; FHWA and FTA practice is for
independent parties to conduct the risk review for Federally funded
projects and the guidance is consistent with this approach. MTA also
suggested that FRA oversight of risk review be limited to FRA
participation in a workshop led by the Project Sponsor. This approach
would also be inconsistent with FHWA and FTA practice of direct Federal
agency involvement or leadership of the entire risk review for
Federally funded projects. Therefore, FRA did not modify the final
guidance in response to this comment.
3. Financial Plan, Section V(e). APTA and MTA sought certainty that
documenting the ``availability of funding'' in the Initial Financial
Plan means that all required approvals for funding from governing
bodies have been secured, such as an approved capital plan. FRA
determined the suggested edits are unnecessary because the guidance
addresses availability of funding and associated documentation in
Section V(e)(ii)(A)(4), which provides as examples official board
resolution or an adopted budget committing the funds to the project, or
evidence that the project and funding amounts are included in the
sponsor's adopted multi-year capital program. APTA and MTA also
suggested adding internal project sponsor review of the Initial
Financial Plan and annual updates that the project sponsor self-
certifies. FRA did not modify the final guidance in response to this
comment because self-certification measures, if appropriate, would be
addressed in the grant agreement.
F. Comments on Project Delivery and Public Private Partnerships
Several commenters provided feedback on the lifecycle progression
of project delivery planning and implementation. CHSRA, APTA, and
Amtrak sought clarification on when procurement happens and how
innovative delivery is recognized in the lifecycle stages. FRA made
edits to Section III.a. to recognize sponsor flexibilities, early
procurements, and early works.
BMWED commented that the guidance should specify railroad labor
organizations as stakeholders in project planning and consider labor
from initial construction to established maintenance. FRA made edits to
Section V.b by modifying the PMP contents to address labor agreements
at Section V.b. BMWED also proposed that the guidance require Project
Sponsors to be Railroad Labor Act (RLA) at 45 U.S.C. 151 et seq.,
Railroad Retirement Act (RRA) at 45 U.S.C. 231 et seq., and Railroad
Unemployment Insurance Act (RUIA) 45 U.S.C. 351 et seq. compliant and
employ railroad employee protections. FRA finds that no change to the
guidance is necessary because grant programs address statutory railroad
labor requirements.
G. Other Comments
FRA received several miscellaneous comments to enhance the
guidance.
1. Amtrak suggested broadening the guidance to address technology
integration and other project types. In response, FRA amended the
construction stage definition at Section IV(e) and the PMP language at
Section V(b).
2. APTA commented that the guidance should address climate
resilience. FRA responded by adding resilience consideration to the
project planning and project development at Sections IV(b) and (c),
respectively.
3. AIPRO, NJT, and APTA commented that effective maintenance should
be recognized in early analyses and the
[[Page 2166]]
operations stage. FRA made several changes to the final guidance to
incorporate maintenance. FRA amended the description of the Project
Development stage in Section IV(c)(ii)(c) to state that the PMP should
include maintenance agreements and made related revisions to the PMP
content language at Section V(b)(i). FRA also amended the description
of the operations stage to clarify that maintenance of assets is part
of operations in Section IV.f.
4. BMWED commented that capital projects that are fully covered by
RLA, RRA, and RUIA should be prioritized. FRA finds that no change is
necessary because grant programs address statutory labor requirements.
Issued in Washington, DC.
Paul Nissenbaum,
Associate Administrator, Office of Railroad Development.
[FR Doc. 2023-00508 Filed 1-11-23; 8:45 am]
BILLING CODE 4910-06-P
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