Notice2024-28820
Public Interest Waiver of the Application of Certain Domestic Preference Requirements and Policies for Transit-Oriented Development Housing 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
December 9, 2024
Issuing agencies
Transportation Department
Abstract
In order to expeditiously deliver projects and provide meaningful infrastructure results while ensuring the appropriate application of domestic content standards, the U.S. Department of Transportation (DOT) is proposing a waiver of the domestic preference requirements to transit-oriented development (TOD) projects that receive credit assistance through the Build America Bureau (the Bureau) under the Transportation Infrastructure Finance and Innovation Act (TIFIA) and Railroad Rehabilitation and Improvement Financing (RRIF) credit programs.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 236 (Monday, December 9, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 236 (Monday, December 9, 2024)]
[Notices]
[Pages 97703-97705]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-28820]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
[Docket No.: DOT-OST-2024-0130]
Public Interest Waiver of the Application of Certain Domestic
Preference Requirements and Policies for Transit-Oriented Development
Housing Projects
ACTION: Notice; request for comment.
-----------------------------------------------------------------------
SUMMARY: In order to expeditiously deliver projects and provide
meaningful infrastructure results while ensuring the appropriate
application of domestic content standards, the U.S. Department of
Transportation (DOT) is proposing a waiver of the domestic preference
requirements to transit-oriented development (TOD) projects that
receive credit assistance through the Build America Bureau (the Bureau)
under the Transportation Infrastructure Finance and Innovation Act
(TIFIA) and Railroad Rehabilitation and Improvement Financing (RRIF)
credit programs.
DATES: Comments must be received by December 24, 2024.
ADDRESSES: Comments on this notice may be submitted to the U.S.
Government electronic docket site at <a href="https://www.regulations.gov">https://www.regulations.gov</a>,
Docket: DOT-OST-2024-0130.
Note:
All submissions received, including any personal information
therein, will be posted without change or alteration to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. For more information, you may review DOT's
complete Privacy Act Statement published in the Federal Register on
April 11, 2000 (65 FR 19477).
FOR FURTHER INFORMATION CONTACT: For questions about this notice,
please contact Duane Callender, US Department of Transportation, Build
America Bureau, at 202-366-2300 or <a href="/cdn-cgi/l/email-protection#a9eddcc8c7cc87eac8c5c5ccc7cdccdbe9cdc6dd87cec6df"><span class="__cf_email__" data-cfemail="3672435758531875575a5a53585253447652594218515940">[email protected]</span></a>. For legal
questions, please contact, Jessica Pettrone, DOT Office of the General
Counsel, at 202-366-8560 or <a href="/cdn-cgi/l/email-protection#6e040b1d1d070d0f401e0b1a1a1c01000b2e0a011a40090118"><span class="__cf_email__" data-cfemail="4c26293f3f252f2d623c2938383e2322290c282338622b233a">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
DOT has a longstanding policy of requiring all projects, including
TOD projects, receiving TIFIA and RRIF credit assistance to comply with
domestic steel, iron, and manufactured products content requirements,
collectively known as ``Buy America'' requirements,\1\ even where not
covered by a specific Buy America statute. DOT has consistently
required for-profit borrowers to comply with Buy America requirements
on projects receiving credit assistance since TIFIA's inception in 1998
and since 2010 for RRIF, whether or not appropriated funds were used
for the cost of the credit assistance. Accordingly, because Buy America
is applied to all projects receiving TIFIA or RRIF credit assistance,
DOT, in an effort to ensure transparency and maintain consistency in
the application of Buy America standards for all recipients (one rule
for all projects and borrowers), proposes to apply this waiver to both
projects with for-profit borrowers that do not use any appropriated
funds for the cost of the loan, to which Buy America requirements are
applied as a matter of policy, as well as to projects with non-Federal
entity borrowers (whether or not such loans use appropriated funds), to
which Buy America requirements apply as a matter of law. DOT proposes a
waiver of the Buy America manufactured products requirement for TIFIA
and RRIF TOD projects that include any housing elements (TOD Housing
Projects) and that enter into creditworthiness review on or before
December 31, 2025.
---------------------------------------------------------------------------
\1\ As described in more detail below, after the enactment of
the Infrastructure Investment and Jobs Act in 2021 (Pub. L. 117-58),
Buy America requirements now include domestic construction material
requirements.
---------------------------------------------------------------------------
On November 15, 2021, President Biden signed the Bipartisan
Infrastructure Law (BIL), enacted as the Infrastructure Investment and
Jobs Act (IIJA). Public Law 117-58. BIL reauthorized Federal surface
transportation programs and invested billions in transformational
projects that are creating good-paying jobs, growing the economy, and
making our transportation system safer and more resilient. TOD projects
are eligible for both TIFIA (23 U.S.C. 601(a)(12)(E)) and RRIF (49
U.S.C. 22402(b)(1)(F)) financing, subject to all other eligibility
criteria, and compliance with all applicable Federal requirements and
creditworthiness standards.\2\
---------------------------------------------------------------------------
\2\ Eligible TOD projects can take many forms, including joint
development; public infrastructure; and economic development,
including commercial and residential development. One of the key
parameters of the programs, among others, is that TOD projects must
be within walking distance of a qualifying transit or passenger rail
station. See <a href="https://www.transportation.gov/buildamerica/TOD">https://www.transportation.gov/buildamerica/TOD</a>.
---------------------------------------------------------------------------
Transportation and land use reforms are central strategies to
achieving many of the Biden-Harris administration goals, including
reaching net-zero greenhouse gas emissions by 2050; addressing the
housing supply and affordability crises throughout the country; and
advancing equity, fair
[[Page 97704]]
housing, and environmental justice.\3\ Providing long-term, low-
interest direct loans through the TIFIA and RRIF credit programs to TOD
projects is one of the primary tools available to DOT to help achieve
this mission.
---------------------------------------------------------------------------
\3\ <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/05/16/president-biden-announces-new-actions-to-ease-the-burden-of-housing-costs/">https://www.whitehouse.gov/briefing-room/statements-releases/2022/05/16/president-biden-announces-new-actions-to-ease-the-burden-of-housing-costs/</a>.
---------------------------------------------------------------------------
Over the last three years, DOT has taken several concrete steps to
date to facilitate TOD financing under the TIFIA and RRIF credit
programs. DOT has published TOD guidance \4\ and a policy statement \5\
and authorized TOD projects' eligibility to borrow up to the maximum
allowed under TIFIA to promote the creation of more walkable, mixed-use
spaces near transit that support vibrant, sustainable, and equitable
communities.\6\ Additionally, the Bureau has worked on outreach to
developers and created several tools including the TOD Eligibility Map
\7\ and has conducted webinars to help educate potential borrowers
about the opportunities and requirements of the programs.
---------------------------------------------------------------------------
\4\ <a href="https://www.transportation.gov/buildamerica/TOD">https://www.transportation.gov/buildamerica/TOD</a>.
\5\ <a href="https://www.transportation.gov/buildamerica/sites/buildamerica.dot.gov/files/2023-10/TOD%20Policy%20Statement.pdf">https://www.transportation.gov/buildamerica/sites/buildamerica.dot.gov/files/2023-10/TOD%20Policy%20Statement.pdf</a>
\6\ <a href="https://www.transportation.gov/buildamerica/TIFIA49">https://www.transportation.gov/buildamerica/TIFIA49</a>.
\7\ <a href="https://www.transportation.gov/buildamerica/about/resources-mode/interactive-map-tifia-and-rrif-tod-eligibility">https://www.transportation.gov/buildamerica/about/resources-mode/interactive-map-tifia-and-rrif-tod-eligibility</a>.
---------------------------------------------------------------------------
The BIL also includes the Build America, Buy America Act (BABA) at
div. G, sec. 70901-52. BABA greatly strengthens Made in America
standards by expanding the coverage and application of Buy America
preferences in Federal financial assistance programs for
infrastructure. The Act requires that the head of each covered Federal
agency shall ensure that ``none of the funds made available for a
Federal financial assistance program for infrastructure . . . may be
obligated for a project unless all of the iron, steel, manufactured
products, and construction materials used in the project are produced
in the United States.'' BIL sec. 70914(a).
BABA applies to Federal financial assistance, which term includes
``all expenditures by a Federal agency to a non-Federal entity for an
infrastructure project.'' BIL sec. 70912(4)(B). ``Non-Federal entity,''
as defined in 2 CFR 200.1, does not include for-profit entities.
Therefore, BABA by its terms does not apply to Federal financial
assistance to for-profit entities.\8\ However, in accordance with the
Office of Management and Budget (OMB)'s Guidance Memorandum M-24-02,
Guidance on Application of Buy America Preference in Federal Financial
Assistance Programs for Infrastructure, Federal agencies may consider
applying domestic preference requirements to for-profit entities,
consistent with their legal authorities. DOT has a longstanding policy
of requiring all projects, including TOD projects, receiving TIFIA or
RRIF credit assistance to comply with domestic steel, iron, and
manufactured products content requirements, collectively known as ``Buy
America'' requirements,\9\ even where not covered by a specific Buy
America statute, including chapter 83 of title 41, United States Code
(Buy American), because no appropriated funds are used for the cost of
the loan. DOT has consistently required for-profit borrowers to comply
with Buy America requirements on projects receiving credit assistance
since TIFIA's inception in 1998 and since 2010 for RRIF, whether or not
appropriated funds were used for the cost of the credit assistance.
Accordingly, because Buy America is applied to all projects receiving
TIFIA or RRIF credit assistance, DOT, in an effort to ensure
transparency and maintain consistency in the application of Buy America
standards for all recipients (one rule for all projects and borrowers),
will apply this waiver to both projects with for-profit borrowers that
do not use any appropriated funds for the cost of the loan, to which
Buy America requirements are applied as a matter of policy, as well as
to projects with non-Federal entity borrowers (whether or not such
loans use appropriated funds), to which Buy America requirements apply
as a matter of law. DOT is proposing a waiver of the Buy America
manufactured products requirement for TOD Housing Projects that enter
into creditworthiness review on or before December 31, 2025.
---------------------------------------------------------------------------
\8\ See OMB Memorandum M-22-11 Initial Implementation Guidance
on Application of Buy America Preference in Federal Financial
Assistance Programs for Infrastructure (April 18, 2022), p. 2
(``for-profit organizations are not considered non-Federal
entities''); OMB Memorandum M-24-02 Implementation Guidance on
Application of Buy America Preference in Federal Financial
Assistance Programs for Infrastructure (October 25, 2023), p. 4
(restating the guidance on for-profit entities from M-22-11); and 88
FR 57750, 57774 (October 23, 2023) (``Thus--although OMB does not
require them to do so--Federal agencies are allowed, under the
existing structure of part 200, to apply part 200, including the
domestic preferences at Sec. 200.322, to for-profit entities'').
\9\ As noted above, after the enactment of BABA, Buy America
requirements now include domestic construction material requirements
per BIL sec. 70914(a).
---------------------------------------------------------------------------
TOD projects are a class of eligible capital projects under the
TIFIA and RRIF credit programs administered by the Bureau. The Bureau
recently provided guidance on Federal requirements for TOD projects
receiving TIFIA or RRIF credit assistance.\10\ Pursuant to that
guidance, the Bureau reiterated the DOT's longstanding policy of
requiring all projects, including TOD projects, receiving TIFIA and
RRIF credit assistance to comply with domestic steel, iron, and
manufactured products content requirements, collectively known as ``Buy
America'' requirements, even where not covered by a specific Buy
America statute, including Buy American requirements because no
appropriated funds are used for the cost of the loan.
---------------------------------------------------------------------------
\10\ <a href="https://www.transportation.gov/buildamerica/about/resources-mode/tod-project-federal-requirements-guidance">https://www.transportation.gov/buildamerica/about/resources-mode/tod-project-federal-requirements-guidance</a>.
---------------------------------------------------------------------------
Waiver
DOT is proposing to issue a public interest waiver of the Buy
America requirements for manufactured products that apply to Bureau-
financed TOD Housing Projects that enter into creditworthiness review
on or before December 31, 2025. For these projects, DOT would continue
to apply domestic steel, iron, and construction materials content
requirements.
To ensure transparency and maintain consistency in the application
of Buy America standards for all recipients (one rule for all projects
and borrowers), this waiver will apply to both TOD Housing Projects
with for-profit borrowers and those with non-Federal entity borrowers.
To continue to support the goals of Buy America policies, DOT will
work closely with TOD Housing Project borrowers to better understand
and document the sources of materials and products used in such
projects. This research will assist DOT in refining its domestic
preference requirements policy for TOD projects entering enter the
Bureau's creditworthiness review phase after January 1, 2026, and to
further support both the delivery of housing and domestic
manufacturing.
Under OMB Memorandum M-24-02, agencies are expected to assess
``whether a significant portion of any cost advantage of a foreign-
sourced product is the result of the use of dumped steel, iron, or
manufactured products or the use of injuriously subsidized steel, iron,
or manufactured products'' as appropriate before granting a public
interest waiver. DOT's analysis has concluded that this assessment is
not applicable to this waiver.
DOT will consider all comments received in the initial 15-day
comment
[[Page 97705]]
period during our consideration of the proposed waiver. Comments
received after this period, but before notice of our finding is
published in the Federal Register, will be considered to the extent
practicable.
Issued in Washington, DC.
Polly E. Trottenberg,
Deputy Secretary.
[FR Doc. 2024-28820 Filed 12-6-24; 8:45 am]
BILLING CODE 4910-9X-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on December 9, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.