Notice2023-28424
Notice of Proposed Nonavailability Waiver of Buy America Requirements for the Nevada Department of Transportation To Purchase Certain High-Speed Rail Components
Primary source
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Published
December 26, 2023
Issuing agencies
Transportation DepartmentFederal Railroad Administration
Abstract
The Federal Railroad Administration (FRA) is seeking comments on whether to grant a waiver of its Buy America requirements to the Nevada Department of Transportation (NVDOT) for certain components that are not produced in the United States for use in a high-speed passenger train project between Las Vegas, NV and Rancho Cucamonga, CA (Project). FRA selected the Project for funding under the Federal-State Partnership for Intercity Passenger Rail Program (FSP Program), and therefore, FRA's Buy America requirements apply to the Project. FRA's Buy America requirements include both FRA's statutory requirements, which require 100 percent of the manufactured products and steel and iron used in an FRA-funded project to be produced in the United States, and the Build America, Buy America Act (BABA), which requires that all construction materials used in the FRA-funded project be produced in the United States. FRA is not proposing to waive the applicable BABA requirements for construction materials used in the Project, and therefore this proposed waiver would not apply to the construction materials used in the Project. The proposed waiver would apply to the trainset, signal systems, high-speed rail turnout and fire alarm systems based on the domestic nonavailability of such components, as identified by NVDOT's railroad operating partner Brightline West and the two potential suppliers (Alstom and Siemens) of the rolling stock and signaling systems for the project. NVDOT and Brightline estimate that over 95 percent of the total direct dollar expenditures for the Project would be spent on domestically sourced products and labor, including 100 percent of the civil infrastructure costs.
Full Text
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<title>Federal Register, Volume 88 Issue 246 (Tuesday, December 26, 2023)</title>
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[Federal Register Volume 88, Number 246 (Tuesday, December 26, 2023)]
[Notices]
[Pages 89015-89017]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28424]
[[Page 89015]]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[Docket No. FRA-2023-0099]
Notice of Proposed Nonavailability Waiver of Buy America
Requirements for the Nevada Department of Transportation To Purchase
Certain High-Speed Rail Components
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice; request for comment.
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SUMMARY: The Federal Railroad Administration (FRA) is seeking comments
on whether to grant a waiver of its Buy America requirements to the
Nevada Department of Transportation (NVDOT) for certain components that
are not produced in the United States for use in a high-speed passenger
train project between Las Vegas, NV and Rancho Cucamonga, CA (Project).
FRA selected the Project for funding under the Federal-State
Partnership for Intercity Passenger Rail Program (FSP Program), and
therefore, FRA's Buy America requirements apply to the Project. FRA's
Buy America requirements include both FRA's statutory requirements,
which require 100 percent of the manufactured products and steel and
iron used in an FRA-funded project to be produced in the United States,
and the Build America, Buy America Act (BABA), which requires that all
construction materials used in the FRA-funded project be produced in
the United States. FRA is not proposing to waive the applicable BABA
requirements for construction materials used in the Project, and
therefore this proposed waiver would not apply to the construction
materials used in the Project. The proposed waiver would apply to the
trainset, signal systems, high-speed rail turnout and fire alarm
systems based on the domestic nonavailability of such components, as
identified by NVDOT's railroad operating partner Brightline West and
the two potential suppliers (Alstom and Siemens) of the rolling stock
and signaling systems for the project. NVDOT and Brightline estimate
that over 95 percent of the total direct dollar expenditures for the
Project would be spent on domestically sourced products and labor,
including 100 percent of the civil infrastructure costs.
DATES: Comments must be received by January 25, 2024.
ADDRESSES: Please submit all comments electronically to the Federal
eRulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and follow the
instructions for submitting comments.
Instructions: All submissions must refer to the Federal Railroad
Administration and the docket number in this notice (FRA-2023-0099).
Note that all submissions received, including any personal information
provided, will be posted without change and will be available to the
public on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. You may review DOT's complete
Privacy Act Statement in the Federal Register published April 11, 2000
(65 FR 19477), or at <a href="https://www.transportation.gov/privacy">https://www.transportation.gov/privacy</a>.
FOR FURTHER INFORMATION CONTACT: For questions about this notice,
please contact Ryan Arbuckle, Chief, Program Coordination and Strategy,
Office of Railroad Development, FRA, telephone: (202) 617-0212, email:
<a href="/cdn-cgi/l/email-protection#ca98b3aba4e48bb8a8bfa9a1a6af8aaea5bee4ada5bc"><span class="__cf_email__" data-cfemail="91c3e8f0ffbfd0e3f3e4f2fafdf4d1f5fee5bff6fee7">[email protected]</span></a>. For legal questions, please contact Faris
Mohammed, Attorney-Advisor, Office of the Chief Counsel, FRA,
telephone: (202) 763-3230, email: <a href="/cdn-cgi/l/email-protection#6026011209134e2d0f08010d0d050420040f144e070f16"><span class="__cf_email__" data-cfemail="723413001b015c3f1d1a131f1f171632161d065c151d04">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Project History and Background
On December 7, 2022, FRA published a Notice of Funding Opportunity
(NOFO) announcing application requirements and procedures to obtain
grant funding under the FSP Program for projects not located on the
Northeast Corridor for Fiscal Year 2022. The FSP Program provides a
Federal funding opportunity to improve passenger rail service,
including privately operated intercity passenger rail service if an
eligible applicant is involved. On February 3, 2023, FRA published a
notice adding funding and extending the application period for the FSP
Program NOFO. On March 22, 2023, FRA published a notice (March Notice)
inviting high-speed rail project sponsors to voluntarily submit, in
advance of being selected to receive FRA funding, their domestic
sourcing and workforce plans (DSWP) to demonstrate how they will
maximize the use of domestic goods, products and materials, consistent
with FRA's Buy America requirements.\1\
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\1\ Advancing High-Speed Rail Projects Intended for Operations
Over 160 Miles Per Hour Through Domestic Sourcing Plans and Buy
America Compliance, 88 FR 17289 (March 22, 2023).
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NVDOT submitted an application for FSP Program funding expressing
its intent to partner with Brightline West, a privately-owned railroad,
to advance a high-speed passenger rail system between Las Vegas, NV and
Rancho Cucamonga, CA (Project). Brightline West, under the supervision
and oversight of NVDOT, would construct the Project, which would
consist of a fully-grade separated high-speed train system largely
within the I-15 right-of-way with stations in Rancho Cucamonga,
Hesperia, and Victor Valley, CA, and Las Vegas, NV. Brightline West
would then operate and maintain the system.
Consistent with FRA's March Notice, NVDOT and Brightline West
submitted a DSWP,\2\ which included a request for a waiver of FRA's Buy
America requirements \3\ for certain components of the high-speed rail
system that the applicant indicated are not produced in the United
States. FRA reviewed the DSWP, including the market research conducted
by Brightline West and their consideration of qualifying alternate
items, products, or materials. FRA selected the Project to receive
$3,000,000,000 in funding under the FSP Program.
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\2\ The DSWP contains proprietary information that FRA has
determined is confidential business information. As such, FRA is not
making the DSWP available to the public at this time; however,
pertinent non-proprietary information provided in the DSWP is
discussed in this notice.
\3\ For FRA's Buy America requirements, see section II.
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This notice summarizes FRA's Buy America requirements, NVDOT and
Brightline West's request for a waiver, and FRA's proposed waiver
decision.
II. FRA's Buy America Requirements and Policy
Projects that receive funding under the FSP Program are subject to
FRA's Buy America requirements. FRA's Buy America requirements include
both: (i) FRA's statutory requirements for steel, iron, and
manufactured goods at 49 U.S.C. 22905(a); and (ii) requirements under
the Build America, Buy America Act (BABA) and guidance at 2 CFR 184.6
for construction materials. This means that FRA can fund a project only
if the steel, iron, and manufactured goods used in the project are
produced in the United States. 49 U.S.C. 22905(a). In addition, FRA-
funded projects must also comply with the relevant provisions of BABA,
including the requirement that all construction materials used in the
project must also be produced in the United States. Public Law 117-58,
70914(a); 2 CFR 184.6.
FRA strictly enforces compliance with its Buy America requirements
to ensure that FRA-funded projects maximize the use of materials
produced in the United States. FRA expects grantees to work with
suppliers to conduct thorough market research and adequately consider,
where appropriate, qualifying alternate items, products, or materials.
[[Page 89016]]
Compliance with FRA's Buy America requirement supports domestic
industry and well-paying jobs.
III. FRA's Authority To Waive Buy America Requirements
There are limited circumstances in which FRA can waive its Buy
America requirements under section 22905(a) and BABA. FRA will grant a
waiver request that is consistent with the statutory criteria for a
waiver and where a project sponsor has adequately justified the need
for a waiver.
FRA may waive its Buy America requirements if FRA determines that:
applying the Buy America requirements would be inconsistent with the
public interest; the steel, iron, and goods produced in the United
States are not produced in a sufficient and reasonably available amount
or are not of a satisfactory quality; rolling stock or power train
equipment cannot be bought and delivered in the United States within a
reasonable time; or including domestic material will increase the cost
of the overall project by more than 25 percent. 49 U.S.C. 22905(a)(2);
see also Public Law 117-58, 70914(b)(prescribing similar statutory
conditions for waivers); and 2 CFR 184.7 (doing the same).
If FRA determines a waiver is appropriate, FRA will provide notice
and seek comment from the public in accordance with the requirements of
both section 22905(a) and BABA, if applicable. In addition, FRA will
consult with the National Institute of Standards and Technology's
Manufacturing Extension Partnership before granting a waiver,
consistent with section 70916 of BABA. Unless otherwise specified,
waiver decisions are non-precedential and are only applicable to the
entities and components for the specific project identified in the
final decision.
IV. Summary of the Request for Waiver
In response to FRA's March Notice, NVDOT and Brightline West
submitted a DSWP outlining the efforts Brightline West would take to
ensure maximum use of available domestic materials in the project if
NVDOT's application is selected for funding under the FSP Program. In
the DSWP, NVDOT and Brightline West explain that certain components
intended to be used on the project are not produced in the United
States and thus request a waiver of FRA's Buy America requirements
under section 22905(a) for these components. No construction materials
covered under BABA are included in the waiver request.
V. Summary of Components Requiring Waiver
Brightline West sought to identify a domestic supplier for the
rolling stock and signal system components of the Project. Brightline
West received two responses to its Request for Interest, from Siemens
and Alstom, who represented they could provide high-speed rail
components that meet Brightline West's specifications and applicable
FRA safety requirements. However, both suppliers certified that certain
non-domestic components would be required to meet the specifications,
as those types of high-speed rail equipment are not produced in the
United States. Brightline West consulted with each potential supplier
so that their lists of non-domestic components would include only those
components for which there is no available domestic option.
Brightline West received responses from both Siemens and Alstom for
the signal systems and both responses indicated a need for a waiver for
certain components. Brightline West selected Siemens as the preferred
vendor for the signal systems for the Project, and therefore the
proposed waiver only describes the non-domestic components in Siemens'
proposal.
For rolling stock, both Alstom and Siemens indicated that certain
components that perform safety critical functions for the operation of
the high-speed rail system would not be compliant with FRA's Buy
America requirements. At the time of this proposed waiver, Brightline
West has not selected its preferred vendor for rolling stock. The non-
domestic components identified by Brightline West that would require a
waiver from FRA's Buy America requirements are described in this
section.\4\
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\4\ The non-domestic component lists may vary among suppliers
depending on the specific manufacturing processes used and system
design. In highly specialized systems, such has high-speed rail
trainsets, components cannot be easily substituted without potential
impacts to performance and safety.
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a. Siemens Proposal--Non-Domestic Rolling Stock Components
Siemens is proposing to introduce the next generation Velaro NOVO
Electric-Multiple-Unit (EMU) for the Project. As this would be the
first introduction of this technology into the United States, Siemens
would plan for the first two trainsets to be manufactured and assembled
in its German headquarters with American workers present to witness and
learn in advance of commencing the manufacturing and assembly of the
remaining eight trainsets at a new factory, which would be constructed
in Nevada. Under the Siemens proposal, the following components would
not be produced in the United States:
<bullet> First Two Complete Trainsets
<bullet> Car Shells for All 10 Trainsets (shell structure, frame,
vehicle paintwork)
b. Alstom Proposal--Non-Domestic Rolling Stock Components
Alstom is proposing to adapt the Avelia technology planned for
deployment on the NEC for use in the Project by increasing power
capacity and traction to achieve the speed and performance capability
required by Brightline West, and consistent with that achieved with its
TGV trains in Europe. Manufacturing would take place at its existing
facility in Hornell, New York, where all 10 trainsets would be built.
For this procurement, the following components would not be produced in
the United States:
<bullet> Car Shells (shell structure, frame, vehicle paintwork)
<bullet> Brake Control Units
c. Non-Domestic Infrastructure Components
Brightline West notes that the Project would also require the use
of specialty high-speed rail turnouts to allow trains to smoothly
diverge to a passing siding, which plays a key role in safety and
stability of train operations. In addition, the Project would require
fire alarm panels and devices for use in stations, garages, and
maintenance facilities. Brightline West has researched known suppliers
and was not able to identify a domestic manufacturer for the following
components:
<bullet> Eurobalises and Euroloops \5\
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\5\ Eurobalise and euroloops are components installed between
the rails of a railway that are part of the European train control
system used by Siemens. These components store infrastructure data
(e.g., position reference, speed limits, line gradient, works on the
line, etc) and can send this information to the train.
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<bullet> Counting Heads and Axle Counter Sensors
<bullet> Truck Press (test stand)
<bullet> Turnout Systems including Derailers
<bullet> Fire Alarm Systems
VI. Applicant's Request for Waiver
In their request for a waiver, NVDOT and Brightline West indicated
that they believe a waiver is justified because no manufacturers exist
in the United States that can produce the components described above,
and that the use of these non-domestic components is necessary to
ensure the safety and reliability of the high-speed rail system.
[[Page 89017]]
NVDOT's and Brightline West's DSWP further explains that over 95
percent of the total direct dollar expenditures for the Project would
be spent on domestically sourced products and labor, including 100
percent of the civil infrastructure costs. In addition, the Project is
expected to support approximately 35,000 domestic jobs across the
construction period and includes a project labor agreement (PLA). The
operator has reached an agreement with rail labor which may result in
ongoing operations and maintenance work being performed by union
labor.\6\ The DSWP further explains efforts Brightline West would take
to facilitate, where feasible, a ramp up in domestic production
capabilities for the materials that are not currently produced in the
United States on future high-speed rail projects in the United States.
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\6\ In March 2023, thirteen rail unions representing more than
160,000 workers signed a Memorandum of Understanding with Brightline
West, establishing a commitment for the use of highly skilled union
labor required to operate and maintain the System.
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In the absence of a waiver, NVDOT and Brightline West argue that
the Project could not be delivered within the planned schedule and
budget because there is no domestic supplier for the components listed
above. To ensure safety of the system, Brightline West expects to
conform with FRA's Passenger Equipment Safety Standards governing Tier
III equipment,\7\ which allows for service-proven high-speed rail
technologies from around the world (in this case Europe) to be
introduced to the United States with minimal modification.
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\7\ See 49 CFR part 238.
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For example, the high-speed rolling stock aluminum car shells are
critical to the achievement of high speeds, due to aluminum's strength
and light weight, and it has taken decades of development in technology
by highly specialized experts that can shape, mold, and weld these car
shells to the required safety and quality standards, including
crashworthiness. There is currently no available aluminum car shell
manufacturer in the United States, and it would take years to establish
a domestic, quality-controlled manufacturing capability. The relatively
small size of the Project's order (ten trainsets) is also not
considered by the applicant to be sufficient to justify the significant
capital investments required to initiate development of domestic
production capacity for those products.
In its request for a waiver, NVDOT and Brightline West explain how
they conducted due diligence and performed thorough market research to
adequately consider qualifying alternate items, products, or materials.
Brightline West engaged with both Alstom and Siemens to determine the
systems that could be manufactured domestically. These efforts included
considering options for the establishment of either temporary or
permanent manufacturing facilities, alternative manufacturing
processes, and system design. In addition, Brightline West conducted
market research to identify a domestic supplier for high-speed turnout
and fire alarm components. However, Brightline West was unable to
identify a domestic supplier for the rolling stock, signal systems,
turnout, and fire alarm components.
VII. Proposed Waiver
Based on its review of the waiver request and DSWP, FRA proposes to
waive its Buy America requirements for the following components for the
Project:
<bullet> The infrastructure components listed above in Section
V(c); and the rolling stock components listed in either:
[cir] Section V(a), if Siemens is selected as the preferred
supplier; or
[cir] Section V(b), if Alstom is selected as the preferred
supplier.
The proposed waiver would apply only to components listed above for
use in the Project, as described in the grant agreement between FRA and
NVDOT. FRA is not proposing to waive any requirements under BABA, as
the proposed waiver does not apply to any construction materials used
in the Project. The proposed waiver would not apply to other FRA
grantees or to other grants that might be made to NVDOT or Brightline
West for other projects (including any future phases related to the
Project).
VIII. Request for Comment
FRA will consider comments received during the comment period,
consistent with BABA and 2 CFR 184.7. FRA may consider comments
received after this period to the extent practicable. Consistent with
49 U.S.C. 22905(a)(4), if FRA determines it is necessary to waive its
Buy America requirements, FRA will publish its decision in the Federal
Register and provide an opportunity for public comment on such finding
for a reasonable period of time not to exceed 15 days. After such
period, FRA's decision will be effective.
Issued in Washington, DC.
Amitabha Bose,
Administrator.
[FR Doc. 2023-28424 Filed 12-22-23; 8:45 am]
BILLING CODE 4910-06-P
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