Notice2024-28068
Notice of Final Nonavailability Waiver of Buy America Requirements for Certain High-Speed Rail Products for the California Inaugural High-Speed Rail Service Project
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
November 29, 2024
Effective
December 4, 2024
Issuing agencies
Transportation DepartmentFederal Railroad Administration
Abstract
The Federal Railroad Administration (FRA) is issuing a waiver of its Buy America requirements to the California High-Speed Rail Authority (the Authority) to use certain products that are not produced in the United States for use in the California Inaugural High-Speed Rail Service Project between Merced, California and Bakersfield, California (Project). FRA is funding the Project under the Federal- State Partnership for Intercity Passenger Rail Program (FSP Program); 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 waiving the applicable BABA requirements for construction materials used in the Project. The final waiver would apply to the aluminum car shells, signal systems, high-speed rail turnouts and fire alarm systems based on the domestic nonavailability of such products, as identified by the Authority. The Authority estimates that over 98 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 89 Issue 230 (Friday, November 29, 2024)</title>
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[Federal Register Volume 89, Number 230 (Friday, November 29, 2024)]
[Notices]
[Pages 94868-94871]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-28068]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
Docket No. FRA-2024-0104]
Notice of Final Nonavailability Waiver of Buy America
Requirements for Certain High-Speed Rail Products for the California
Inaugural High-Speed Rail Service Project
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice.
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SUMMARY: The Federal Railroad Administration (FRA) is issuing a waiver
of its Buy America requirements to the California High-Speed Rail
Authority (the Authority) to use certain products that are not produced
in the United States for use in the California Inaugural High-Speed
Rail Service Project between Merced, California and Bakersfield,
California (Project). FRA is funding the Project under the Federal-
State Partnership for Intercity Passenger Rail Program (FSP Program);
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
[[Page 94869]]
States. FRA is not waiving the applicable BABA requirements for
construction materials used in the Project. The final waiver would
apply to the aluminum car shells, signal systems, high-speed rail
turnouts and fire alarm systems based on the domestic nonavailability
of such products, as identified by the Authority. The Authority
estimates that over 98 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: This waiver is effective December 4, 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-2024-0104). 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/">https://www.transportation.gov/</a>privacy.
FOR FURTHER INFORMATION CONTACT: For questions about this notice,
please contact Shreyas Bhatnagar, Regional Supervisor, Office of
Regional Outreach & Project Delivery, Office of Railroad Development,
FRA, telephone: (202) 495-8630, email: <a href="/cdn-cgi/l/email-protection#9ccff4eef9e5fdefb2def4fde8f2fdfbfdeedcf8f3e8b2fbf3ea"><span class="__cf_email__" data-cfemail="50033822352931237e123831243e3137312210343f247e373f26">[email protected]</span></a> or
Ryan Arbuckle, Chief, Program Coordination and Strategy, Office of
Railroad Development, FRA, telephone: (202) 617-0212, email:
<a href="/cdn-cgi/l/email-protection#217358404f0f60534354424a4d4461454e550f464e57"><span class="__cf_email__" data-cfemail="f7a58e9699d9b6859582949c9b92b7939883d9909881">[email protected]</span></a>. For legal questions, please contact Faris
Mohammed, Attorney-Adviser, Office of the Chief Counsel, FRA,
telephone: (202) 763-3230, email: <a href="/cdn-cgi/l/email-protection#1d5b7c6f746e335072757c707078795d797269337a726b"><span class="__cf_email__" data-cfemail="2e684f5c475d006341464f43434b4a6e4a415a00494158">[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. 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, a domestic sourcing and workforce plan (DSWP) to
demonstrate how the sponsor 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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The Authority applied for FSP Program funding expressing its intent
to advance the California High-Speed Rail System through completion of
the Inaugural High-Speed Rail Service Project between the cities of
Merced and Bakersfield in the Central Valley of California.\2\
Consistent with FRA's March Notice, the Authority submitted a DSWP,\3\
which included an initial request for a waiver of FRA's Buy America
requirements for certain products that the Authority concluded are not
produced in the United States. The DSWP also provides the Authority's
justification for seeking a waiver based on nonavailability of the
requested products. The Authority describes its coordination with
potential suppliers and consideration of alternate products. In
addition to the Authority's market research and coordination, the
Authority also refers to market research conducted by Brightline West
for the Brightline West High-Speed Train Project, as the Authority
anticipates using the same or substantially similar products for the
Project. In December 2023, FRA selected the Project to receive
$3,073,600,000 in funding under the FSP Program. In a letter dated
September 13, 2024, the Authority requested a waiver from FRA's Buy
America requirements consistent with the Authority's DSWP.
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\2\ The California High-Speed Rail System is a multi-phase
effort that is planned to provide service between San Francisco and
Los Angeles and to provide a competitive transportation mode with
estimated speeds capable of 186 (or greater) miles per hour.
\3\ 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.
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The Authority is responsible for developing product specifications
and procuring materials for use in the Project and expects to use FSP
Program funds for costs associated with those procurements. The
Authority's procurement process is separate from FRA's review of the
Authority's request for a waiver of Buy America requirements, and FRA
is not involved in the development of product specifications or the
Authority's procurement process. FRA's role is limited to reviewing the
Authority's request for a waiver and making certain statutory findings,
consistent with 49 U.S.C. 22905(a)(2). FRA plays no role in the
business decisions the Authority makes with respect to procurement of
the best products for its project.
In August 2023, the Authority issued a Request for Qualifications
(RFQ) to procure six trainsets for the Project that could meet FRA's
Passenger Equipment Safety Standards governing Tier III equipment (Tier
III Rule), which establishes safety standards for high-speed rail
equipment and operations that travel at speeds above 125 mph.\4\ Two
Original Equipment Manufacturers (OEMs) responded to the Authority's
RFQ. Neither OEM indicated that they would be able to supply a fully
Buy America-compliant trainset in their responses as both OEMs
indicated they would need a waiver from FRA's Buy America requirements
for the aluminum car shells (shell, structure, and vehicle paintwork),
as the car shells are not produced in the United States. In April 2024,
the Authority issued a Request for Proposals for the six trainsets. In
addition to trainsets, the Authority identified additional products
that are not produced domestically, which would also require a waiver.
The Authority expects to complete its procurement process for the
trainsets and other contracts later this year.
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\4\ See 49 CFR part 238.
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Based on information gathered through the procurement process and
through market research, the Authority revised its initial DSWP, which
further explains how the Authority will meet FRA's Buy America
requirements and identifies any necessary waivers for noncompliant
products. FRA reviewed the DSWP, including the market research
conducted by the Authority.
On September 20, 2024, FRA published for a 30-day public comment
period a proposed waiver for the Project based on the domestic
nonavailability of certain components. FRA received 11 unique comments,
which are discussed below. This notice summarizes FRA's Buy America
requirements, the Authority's request for a waiver, and FRA's findings
and final waiver.
II. FRA's Buy America Requirements and Policy
Projects that receive funding under FRA's FSP Program are subject
to FRA's Buy America requirements. FRA's Buy America requirements
include both: (i) FRA's statutory requirements for steel,
[[Page 94870]]
iron, and manufactured goods at 49 U.S.C. 22905(a); and (ii)
requirements under the Build America, Buy America Act (BABA) and
related 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 recipients to work with
suppliers to conduct thorough market research and adequately consider,
where appropriate, qualifying alternate items, products, or materials
that can also meet the recipient's technical specifications. Compliance
with FRA's Buy America requirements 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 49 U.S.C. 22905(a) and BABA. FRA will grant
a waiver request only after making the requisite findings 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).
Specifically, when determining whether 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
pursuant to 49 U.S.C. 22905(a)(2)(B), FRA considers whether the
recipient has used appropriate due diligence, such as market research
or by soliciting proposals through an open procurement process, to
identify domestic products or domestically available alternative
products that meet the recipient's specifications. A comparable product
that performs a similar function is not necessarily a domestic
alternative; the product must also meet the recipient's specific
requirements. FRA's statutory requirements do not require recipients to
change product specifications in order to utilize domestic products
that do not meet the recipient's original specifications. If there are
no domestically produced products that also meet the recipient's
specifications, and the recipient has exercised appropriate diligence,
FRA may waive its Buy America requirements based on nonavailability,
consistent with 49 U.S.C. 22905(a)(2)(B).
IV. Summary of the Proposed Waiver
On September 20, 2024, FRA issued the Notice of Proposed
Nonavailability Waiver of Buy America Requirements for Certain High-
Speed Rail Products for the California Inaugural High-Speed Rail
Service Project, at 89 FR 77224. Based on the information provided by
the Authority, FRA concluded that the following products were not
available in the United States:
<bullet> Car Shells (shell structure, frame, vehicle paintwork) for
six trainsets;
<bullet> Eurobalises and Euroloops; \5\
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\5\ Eurobalise and Euroloops are products installed between the
rails of a railway that are part of the European train control
system. These products store infrastructure data (e.g., position
reference, speed limits, track grade, and maintenance zones) 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; and
<bullet> Fire Alarm Systems.
At the time of the proposed waiver, the Authority had not selected
an OEM for the trainsets and had not completed its procurement process
for the Project, but neither OEM indicated that they would be able to
supply a fully Buy America-compliant trainset, as both OEMs would
require aluminum car shells that are not produced in the U.S. The
Authority's procurement process is separate from FRA's consideration of
nonavailability under 49 U.S.C. 22905(a)(2)(B). FRA expects the
Authority to make its procurement decision based on the needs for the
Project and to select products that meet the Authority's
specifications. In a letter dated October 24, 2024, the Authority
requested FRA finalize the waiver as proposed. The Authority noted that
it will continue its procurement process and review and evaluate
proposals based on the needs of the Project. If, based on the final
procurement, there are changes to the items described in the final
waiver, the Authority may need to request additional waivers from FRA.
V. Discussion of Public Comments
Comments on the waiver were due October 7, 2024. FRA received 11
comments that generally supported the proposed waiver, and no comments
that generally opposed the proposed waiver. Commenters did not raise
significant concerns or provide new information relevant to FRA's
proposed waiver. As such, FRA is not modifying the proposed waiver in
response to comments.
VI. NIST-MEP Supplier Scouting Results
Consistent with section 70916 of BABA, FRA will request that
recipients consult with the National Institute of Standards and
Technology's Manufacturing Extension Partnership (NIST-MEP) through the
NIST-MEP's supplier scouting program, prior to issuing a final waiver.
The NIST-MEP supplier scouting opportunity allows agencies,
manufacturers, and project sponsors to identify potential manufacturers
from across the nation to assist in market research on domestic
availability. As the products included in this final waiver are the
same as the products described in the Final Nonavailability Waiver for
the Brightline West Project, FRA is relying on the results of NIST-
MEP's supplier scouting effort for the Brightline West Project. As of
January 26, 2024, the NIST-MEP was not able to identify a domestic
manufacturer for the products listed within the Brightline West waiver
through the supplier scouting program.\6\ This further supports FRA's
conclusion that the products listed in the proposed waiver are not
produced in the United States.
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\6\ 89 FR 45934 (May 24, 2024).
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VII. Final Waiver
Based on its review of the waiver request and DSWP, and in
consideration of comments received on the proposed waiver, FRA is
waiving its Buy America requirements for the following products:
<bullet> Car Shells (shell structure, frame, vehicle paintwork) for
six trainsets;
<bullet> Eurobalises and Euroloops;
<bullet> Counting Heads and Axle Counter Sensors;
<bullet> Truck Press (test stand);
[[Page 94871]]
<bullet> Turnout Systems including Derailers; and
<bullet> Fire Alarm Systems.
The waiver would apply only to products listed in Section IV for
use in the Project. FRA is not proposing to waive any requirements
under BABA, as the waiver does not apply to any construction materials
used in the Project. The waiver would not apply to other FRA recipients
or to other grants that might be made to the Authority for other
projects (including any future phases related to the Project). This
waiver will expire upon the end of the period of performance and
closeout of the grant agreement for the Project.
Issued in Washington DC.
Allison Ishihara Fultz,
Chief Counsel.
[FR Doc. 2024-28068 Filed 11-27-24; 8:45 am]
BILLING CODE 4910-06-P
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