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[Code of Federal Regulations]
[Title 49, Volume 4]
[Revised as of October 1, 2003]
[CITE: 49CFR268]

[Page 742-749]

 
TITLE 49--TRANSPORTATION
CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
PART 268--MAGNETIC LEVITATION TRANSPORTATION TECHNOLOGY DEPLOYMENT PROGRAM



                           Subpart A--Overview

Sec.
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.

    Source: 65 FR 2344, Jan. 14, 2000, unless otherwise noted.

                           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, 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).

[[Page 743]]

    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.

[[Page 744]]

    (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 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.

[[Page 745]]

             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;

[[Page 746]]

    (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 (``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.

[[Page 747]]

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 
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

[[Page 748]]

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.

[[Page 749]]

    (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.

[[Page 751]]



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