Notice That the Build America, Buy America Requirement for Construction Materials Applies Effective November 10, 2022, and Notice of Proposed Waiver of That Requirement for a Narrow Category of Contracts and Solicitations, 68572-68576 [2022-24743]

Download as PDF 68572 Federal Register / Vol. 87, No. 219 / Tuesday, November 15, 2022 / Notices Issued in Washington, DC. Paul Nissenbaum, Associate Administrator and Chief Development Officer, Office of Railroad Development. [FR Doc. 2022–24860 Filed 11–14–22; 8:45 am] BILLING CODE 4910–06–P DEPARTMENT OF TRANSPORTATION Federal Railroad Administration FOR FURTHER INFORMATION CONTACT [Docket No. FRA–2000–7257, Notice No. 92] Railroad Safety Advisory Committee; Notice of Meeting Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Notice of public meeting. AGENCY: FRA announces the sixtythird meeting of the Railroad Safety Advisory Committee (RSAC), a Federal Advisory Committee that develops railroad safety regulations through a consensus process. DATES: The RSAC meeting is scheduled for Monday, December 12, 2022. The meeting will commence at 9:30 a.m. and will adjourn by 11:30 a.m. (all times Eastern Standard Time). Requests to attend the meeting must be received by December 2, 2022. Requests for accommodations because of a disability must be received by December 2, 2022. ADDRESSES: The RSAC meeting will be held by Microsoft Teams and by telephone. Virtual and telephonic attendance information will be provided upon registration with either of the individuals listed in the FOR FURTHER INFORMATION CONTACT section. Copies of the minutes of past meetings, along with general information about the committee, are available on the RSAC internet website at https:// rsac.fra.dot.gov/. FOR FURTHER INFORMATION CONTACT: Kenton Kilgore, RSAC Designated Federal Officer/RSAC Coordinator, FRA Office of Railroad Safety, telephone: (202) 365–3724 or email: kenton.kilgore@dot.gov; or Thomas Woodhams, Executive Officer, FRA Office of Railroad Safety, telephone: (504) 232–6601or email: thomas.woodhams@dot.gov. Any committee-related request should be sent to the persons listed in this section. SUPPLEMENTARY INFORMATION: Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92– 463), FRA is giving notice of a meeting of the RSAC. The RSAC is composed of 51 voting representatives from 26 member organizations, representing lotter on DSK11XQN23PROD with NOTICES1 SUMMARY: VerDate Sep<11>2014 19:16 Nov 14, 2022 Jkt 259001 various rail industry perspectives. The diversity of the Committee ensures a representative range of views and expertise necessary to discharge its responsibilities. Public Participation: The meeting will be open to the public and attendance may be limited due to virtual and telephonic meeting constraints. To register to attend, please send an email to either of the individuals listed in the section. The meeting is accessible to individuals with disabilities. DOT and FRA are committed to providing equal access to this meeting for all participants. If you need alternative formats or services because of a disability, please contact either of the individuals listed in the FOR FURTHER INFORMATION CONTACT section and submit your request by December 2, 2022. Any member of the public may submit a written statement to the committee at any time. If a member of the public wants to submit written materials to be reviewed by the committee during the meeting, the submission must be received by December 2, 2022. Agenda Summary: The RSAC meeting topics will include updates on recent activity by RSAC Working Groups for: Passenger Safety; Track Standards; Roadway Worker Protection; Part 220 Electronic Devices; Confidential Close Call Reporting System; and Critical Incident Stress Plans. The detailed agenda will be posted on the RSAC internet website at least one week in advance of the meeting. Issued in Washington, DC. Amitabha Bose, Administrator. [FR Doc. 2022–24730 Filed 11–14–22; 8:45 am] BILLING CODE 4910–06–P DEPARTMENT OF TRANSPORTATION Office of the Secretary [Docket No. DOT–OST–2022–0123] Notice That the Build America, Buy America Requirement for Construction Materials Applies Effective November 10, 2022, and Notice of Proposed Waiver of That Requirement for a Narrow Category of Contracts and Solicitations ACTION: Notice; request for comments. The Department of Transportation (DOT) seeks to maximize the use of American-made products and materials in all federally funded projects as part of the Biden-Harris SUMMARY: PO 00000 Frm 00136 Fmt 4703 Sfmt 4703 Administration’s implementation of the Build America, Buy America Act (the Act), which was included in the historic Bipartisan Infrastructure Law (BIL). The implementation of this law will transform DOT’s approach to domestic procurement requirements and is designed to drive significant investment in domestic manufacturing, spur job creation and grow the economy. The Department is taking three concurrent actions: (1) DOT is not extending its temporary waiver for construction materials, making that requirement applicable effective November 10, 2022; (2) in a separate notice, DOT is proposing a narrow waiver for de minimis costs, small grants, and minor components; and (3) in this notice, DOT is proposing to take two actions to help transition to the new construction materials standard. First, for DOT awards obligated on or after the effective date of the final waiver, DOT is proposing to waive the construction materials requirements for any contracts entered into before November 10, 2022. Second, DOT is proposing to waive the construction materials requirements for any contracts entered into before March 10, 2023, that result from solicitations published before May 14, 2022. DATES: Comments must be received by November 20, 2022. Late-filed comments will be considered to the extent practicable. ADDRESSES: Please submit your comments to the Federal eRulemaking Portal at https://www.regulations.gov/, Docket: DOT–OST–2022–0123. Note: All submissions must contain the agency name and the docket number. All submissions received, including any personal information therein, will be posted without change or alteration to https:// www.regulations.gov. 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 questions about this notice, please contact Darren Timothy, DOT Office of the Assistant Secretary for Transportation Policy, at darren.timothy@dot.gov or at 202–366– 4051. For legal questions, please contact Michael A. Smith, DOT Office of the General Counsel, 202–366–2917, or via email at michael.a.smith@dot.gov. SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: Background In January 2021, President Biden issued Executive Order 14005, titled ‘‘Ensuring the Future is Made in All of America by All of America’s Workers,’’ launching a whole-of-government initiative to strengthen Made in America E:\FR\FM\15NON1.SGM 15NON1 lotter on DSK11XQN23PROD with NOTICES1 Federal Register / Vol. 87, No. 219 / Tuesday, November 15, 2022 / Notices standards. The Executive Order states that the United States Government ‘‘should, consistent with applicable law, use terms and conditions of Federal financial assistance awards and Federal procurements to maximize the use of goods, products, and materials produced in, and services offered in, the United States.’’ DOT is committed to ensuring strong and effective Buy America implementation consistent with Executive Order 14005 and has a long track record of successfully applying Made in America standards to support American workers and businesses through its more than $70 billion in grant programs and $700 million in direct purchases in FY 2020. On November 15, 2021, President Biden signed the Infrastructure Investment and Jobs Act (IIJA or the Bipartisan Infrastructure Law), Public Law 117–58, which includes the Build America, Buy America Act (BABA). IIJA div. G §§ 70901–27. The Bipartisan Infrastructure Law not only makes an historic investment in American transportation—from roads and bridges to rail to transit—but also greatly strengthens Made in America standards. Specifically, BABA expands the coverage and application of Buy America preferences in Federal financial assistance programs for infrastructure. BABA requires that no later than May 14, 2022—180 days after the date of enactment—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.’’ IIJA § 70914(a). BABA provides that the preferences under Section 70914 apply only to the extent that a domestic content procurement preference as described in Section 70914 does not already apply to iron, steel, manufactured products, and construction materials. IIJA § 70917(a)– (b). This provision allows Federal agencies to preserve existing Buy America policies and provisions that meet or exceed the standards required by BABA. One of the new Buy America preferences included under BABA is for construction materials. By May 14, 2022, each covered Federal agency must ensure that all manufacturing processes for construction materials used in federally assisted infrastructure projects occur in the United States. None of the specific statutes that apply particular Buy America requirements to the Federal financial assistance programs VerDate Sep<11>2014 19:16 Nov 14, 2022 Jkt 259001 administered by DOT’s Operating Administrations specifically covers construction materials, other than to the extent that such materials would already be considered iron, steel, or manufactured products. IIJA § 70914. In addition to establishing Buy America preferences, BABA also provides certain statutory authorities for the Made in America Office (MIAO) in the Office of Management and Budget (OMB). IIJA §§ 70915(b), 70923. MIAO was first established by Section 4 of Executive Order 14005. MIAO’s authorities under the Bipartisan Infrastructure Law include issuing guidance to assist in applying BABA’s requirements and issuing standards that define the term ‘‘all manufacturing processes’’ in the case of construction materials. IIJA § 70915. On April 18, 2022, OMB issued memorandum M–22–11, ‘‘Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure’’ (Implementation Guidance). Under Section VIII of the Implementation Guidance, ‘‘construction materials’’ includes: an article, material, or supply—other than an item of primarily iron or steel; a manufactured product; cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives—that is or consists primarily of: • non-ferrous metals; • plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables); • glass (including optic glass); • lumber; or • drywall. Implementation Guidance at 13–14. The Implementation Guidance states that ‘‘an article, material, or supply should only be classified into one of the following categories: (1) iron or steel; (2) a manufactured product; or (3) a construction material. For ease of administration, an article, material, or supply should not be considered to fall into multiple categories.’’ Id. at 6. The Implementation Guidance also explains that ‘‘items that consist of two or more of the listed materials that have been combined together through a manufacturing process, and items that include at least one of the listed materials combined with a material that is not listed through a manufacturing process, should be treated as manufactured products, rather than as construction materials.’’ Id. at 14. OMB characterizes its guidance on which PO 00000 Frm 00137 Fmt 4703 Sfmt 4703 68573 materials are construction materials as ‘‘preliminary and non-binding guidance . . . so that agencies can begin applying Buy America requirements to those materials.’’ Id. at 13. Section 70915(b) of BABA requires OMB to issue standards that define ‘‘all manufacturing processes’’ for construction materials. Section VIII of the Implementation Guidance provides that, ‘‘[p]ending MIAO’s issuance of final standards on construction materials, and absent any existing applicable standard in law or regulation that meets or exceeds these preliminary standards, agencies should consider ‘all manufacturing processes’ for construction materials to mean the final manufacturing process and the immediately preceding manufacturing stage for the construction material.’’ Implementation Guidance at 14. After considering information received through stakeholder and industry outreach, MIAO will issue further guidance that identifies initial manufacturing processes for each type of construction material that should be considered as part of ‘‘all manufacturing processes.’’ Id. Agencies are also directed to ‘‘consult with MIAO, as needed, to ensure that any waiver issued for construction materials is explicitly targeted and time-limited, in order to send a clear market signal that additional standards for ‘all manufacturing processes’ in the case of construction materials will be forthcoming.’’ Id. In April 2022, DOT opened a public docket (DOT–OST–2022–0047) to receive comments in response to DOT’s proposal to waive the construction materials requirement for 180 days, to allow for a longer transition period. On May 19, 2022, DOT issued a temporary waiver of the construction materials requirement for 180 days: from May 14 until November 10, 2022. 87 FR 31931. In the waiver notice, DOT stated its expectation that States, industry, and other participants establish procedures to document compliance. During the waiver period, DOT is continuing its engagement to help facilitate the creation of robust enforcement and compliance mechanisms and to rapidly encourage domestic sourcing of construction materials for transportation infrastructure improvements. On July 28, 2022, DOT issued a Request for Information (RFI) seeking input from the public, including DOT’s project sponsors, their contractors and offerors, manufacturers, labor unions, transportation and trade associations, and other interested parties on implementing BABA’s new construction E:\FR\FM\15NON1.SGM 15NON1 68574 Federal Register / Vol. 87, No. 219 / Tuesday, November 15, 2022 / Notices lotter on DSK11XQN23PROD with NOTICES1 materials requirement. 87 FR 45397. DOT asked the public to submit comments to the same docket DOT used to propose the 180-day waiver. Based on its review of comments received on the RFI and other engagement opportunities with stakeholders, and consistent with the purpose of the temporary transitional waiver, DOT does not intend to modify or extend the existing DOT waiver for construction materials. As a result, DOT awards obligated on or after November 10, 2022, from financial assistance programs for infrastructure projects will be subject to the BABA requirement that construction materials used on those projects be produced in the United States. The Need for a Waiver The Implementation Guidance states that a ‘‘waiver in the public interest may be appropriate where an agency determines that other important policy goals cannot be achieved consistent with the Buy America requirements established by the Act.’’ Implementation Guidance at 10. The guidance also recognizes several instances in which Federal agencies may consider issuing a public interest waiver and encourages agencies to consider an adjustment period where time-limited waivers would allow recipients and agencies to transition to new Buy America preferences, rules, and processes. Id. at 11. Since enactment of the Bipartisan Infrastructure Law, DOT has received numerous inquiries and comments from recipients raising concerns about the applicability of the new construction materials requirement to projects that already are under construction or are in advanced stages of planning. For example, a large West Coast transit system asked whether its projects already under construction could continue to comply with Buy America requirements as they existed at the time of contract award, or if they would be affected by the new domestic preference for construction materials. A large northeastern transit system similarly asked how the construction materials requirement would apply to a major construction project that is underway. The project already has some Federal financial assistance, and the transit system is concerned about the project remaining eligible for additional grant awards on or after November 10. Some commenters on the proposed temporary waiver for construction materials issued by DOT in April and on the RFI issued in July also described problems that would arise if DOT were to apply the construction materials VerDate Sep<11>2014 19:16 Nov 14, 2022 Jkt 259001 requirement to projects that have been under development or construction prior to the expiration of the temporary waiver on November 10. For example, the Santa Clara Valley Transportation Authority asked whether the construction materials requirement will apply to construction contracts that it already has executed under pre-award authority for a project in the Federal Transit Administration’s (FTA) Expedited Project Delivery Pilot Program, which may receive an FTA grant that would be awarded on or after November 10.1 The New York Metropolitan Transportation Authority requested that DOT waive the construction materials requirement for, inter alia, (a) any contracts awarded during the waiver period, and (b) any contracts executed during the DOT waiver period using pre-award authority if they are funded by grants awarded after the waiver period.2 Capital Metro requested that contracts awarded before the construction materials requirement takes effect be allowed to comply with Buy America standards as they existed at the time the contract was formed, even if the contract is funded by grants obligated in subsequent years.3 Several State departments of transportation expressed similar concerns in their submissions to the docket. For example, the New Jersey Department of Transportation commented that redesigning projects that are in an advanced state of design could be expensive and negatively affect project delivery and requested that such projects be exempt from the new construction materials requirement.4 Similarly, the South Dakota Department of Transportation commented that it is not appropriate or feasible to apply the construction materials requirement to projects where bids were already submitted, and contracts awarded, based on using materials with no country-of-origin specifications; doing so would possibly require cancelling current contracts and would add delay and additional costs for project 1 Comment from the Santa Clara Valley Transportation Authority (Aug. 16, 2022), https:// www.regulations.gov/comment/DOT-OST-20220047-0122. 2 Comment from the New York Metropolitan Transportation Authority (May 13, 2022), https:// www.regulations.gov/comment/DOT-OST-20220047-0037. 3 Comment from the Capital Metropolitan Transportation Authority (May 13, 2022), https:// www.regulations.gov/comment/DOT-OST-20220047-0049. 4 Comment from the New Jersey Department of Transportation (Aug. 12, 2022), https:// www.regulations.gov/comment/DOT-OST-20220047-0111. PO 00000 Frm 00138 Fmt 4703 Sfmt 4703 sponsors.5 The California Department of Transportation reported that it has many multi-year contracts in place that incorporate Buy America standards as they existed before BABA and asked whether these contracts will remain eligible for Federal grants obligated on or after November 10.6 Additionally, a joint comment submitted by the transportation departments of Idaho, Montana, North Dakota, South Dakota, and Wyoming requested that DOT not apply the new construction materials requirement to projects where bids were already submitted and awarded without country-of-origin requirements, because doing so could require project sponsors and contractors to cancel orders or cancel contracts and incur additional costs and delays.7 Based on these and other inquiries and comments, DOT has identified certain categories of projects for which application of the BABA construction materials requirement after the DOT waiver expires would present significant concerns: (1) projects that have received DOT financial assistance awards before November 10, 2022—and sometimes even prior to enactment of the Bipartisan Infrastructure Law—that have completed procurements involving construction materials or currently are in the process of soliciting construction contracts, and will receive additional DOT financial assistance that will be obligated on or after November 10, 2022; (2) projects that will be funded by DOT grants obligated on or after November 10, 2022, for which recipients have exercised DOTapproved pre-award authority before November 10 to execute or solicit construction contracts prior to grant award; (3) projects that will be funded by DOT credit assistance obligated on or after November 10, 2022, for which recipients solicited construction contracts before May 14, 2022; Requiring compliance with the BABA domestic preference for construction materials would be unduly burdensome for projects that already have executed construction contracts, because they already have received DOT financial 5 Comment from the South Dakota Department of Transportation (Aug. 18, 2022), https:// www.regulations.gov/comment/DOT-OST-20220047-0167. 6 Comment from the California Department of Transportation (Aug. 18, 2022), https:// www.regulations.gov/comment/DOT-OST-20220047-0170. 7 Comment from the Transportation Departments of Idaho, Montana, North Dakota, South Dakota, and Wyoming (Aug. 17, 2022), https:// www.regulations.gov/comment/DOT-OST-20220047-0132. E:\FR\FM\15NON1.SGM 15NON1 Federal Register / Vol. 87, No. 219 / Tuesday, November 15, 2022 / Notices assistance, are exercising DOT-approved pre-award authority, or will receive DOT credit assistance for activities already in progress.8 Under these circumstances, application of the construction materials requirement could compel contract terminations and cause projects to be put on hold while conducting new procurements. Accordingly, application of the construction materials requirement to these categories of projects would result in unacceptable delay, increased project costs, and potential loss of jobs while project construction is paused. Additionally, for large infrastructure projects, the preparation of solicitations by project sponsors and the preparation of bids and proposals by offerors require significant time and investment, and are based on project design that occurs well in advance of the solicitations. DOT recipients throughout the country have exercised pre-award authority to solicit construction contracts prior to the May 14, 2022, effective date of the construction materials requirement, for which contract award will not occur until on or after November 10. Applicants to DOT’s credit assistance programs often have solicitations underway concurrent with the Department’s application and creditworthiness reviews. In these instances, amending the specifications of the contract solicitations to impose new requirements that were not previously applicable would cause considerable delay. Proposed Waiver and Request for Comments lotter on DSK11XQN23PROD with NOTICES1 DOT recognizes the importance of ensuring the use of domestically produced construction materials on infrastructure projects receiving Federal assistance and the need to implement the requirement in a way that does not delay delivery of projects that were sufficiently advanced before the requirement applies to DOT funding. Therefore, for DOT awards obligated on or after the effective date of the waiver, DOT proposes to issue a general public interest waiver of BABA’s domestic preference for construction materials for: (1) Any contract entered into before November 10, 2022; and 8 For information related to pre-award costs, see 2 CFR 200.458, ‘‘Pre-award costs.’’ Some DOT OAs have program-specific guidance on pre-award authority, including FTA’s ‘‘Notice of FTA Transit Program Changes, Authorized Funding Levels and Implementation of the Infrastructure Investment and Jobs Act; and FTA Fiscal Year 2022 Apportionments, Allocations, Program Information and Interim Guidance’’, 87 FR 25362 (April 28, 2022). VerDate Sep<11>2014 19:16 Nov 14, 2022 Jkt 259001 (2) Any contract entered into before March 10, 2023, if the contract results from a solicitation published prior to May 14, 2022. In these limited circumstances, DOT recipients incurred costs, executed contracts, are conducting procurements with long lead times prior to the BABA construction materials requirement taking effect, though they will seek Federal reimbursement through grants obligated on or after November 10, 2022. This proposed waiver would preserve the eligibility of costs a project sponsor already incurred or estimated before the construction materials requirement took effect. The purpose of covering contracts through March 10, 2023, for contracts resulting from solicitations published before the May 14, 2022, BABA effective date, is to provide recipients with reasonable time to complete procurements. Project sponsors and offerors have invested significant resources in such procurements, which are based on design and engineering conducted before the BABA construction materials requirement went into effect. A project sponsor whose solicitation does not result in a contract before March 10, 2023, would have to take such measures as may be necessary to ensure that its contract will comply with the construction materials requirement. If issued, this waiver would apply only to projects funded by DOT financial assistance obligated on or after the effective date of the waiver. DOT financial assistance obligated before the expiration of the temporary DOT waiver on November 10, 2022 is not subject to the BABA’s construction materials requirement. DOT requests comments on the applicable dates proposed in this waiver. DOT also requests comments on whether this waiver should be timelimited or phased for certain long-term contracts. In order to support a more efficient and targeted process for future waivers, DOT requests comment on whether there are other scenarios where project delivery would be significantly disrupted or delayed because of circumstances such as the level of design and engineering for a project that has occurred in relation to the effective date of the construction materials preference and provide specific information as to the construction materials which may not be available. For example, are there specific circumstances that may justify a project specific waiver, such as the unavailability of specific construction materials manufactured in the United States in sufficient quantity or quality PO 00000 Frm 00139 Fmt 4703 Sfmt 4703 68575 for a particular DOT-funded transportation project or category of projects? Additionally, are there transportation projects, such as projects in various stages of FTA’s Capital Investment Grants program, for which a waiver may be justified due to significant delay in project delivery. If completed design and engineering must be revised to comply with the construction materials preference after November 10, 2022, DOT seeks comments on the length and type of waiver which may be necessary to mitigate a significant delay. This proposed waiver would apply to infrastructure projects funded by financial assistance administered by the Office of Secretary of Transportation or any of DOT’s Operating Administrations with financial assistance programs, including the Federal Aviation Administration (FAA); the Federal Highway Administration (FHWA); the Federal Motor Carrier Safety Administration; the Federal Railroad Administration (FRA); the Federal Transit Administration (FTA); the Maritime Administration (MARAD); the National Highway Traffic Administration (NHTSA); and the Pipeline and Hazardous Materials Safety Administration (PHMSA). This proposed waiver would not affect any domestic preference requirements under other authorities, including DOT’s non-BABA domestic preference statutes: 49 U.S.C. 50101 (FAA); 23 U.S.C. 313 (FHWA and NHTSA); 49 U.S.C. 22905(a) (FRA); 49 U.S.C. 5323(j) (FTA); and 46 U.S.C. 54101(d)(2) (MARAD). The Implementation Guidance also provides that, before granting a waiver in the public interest, to the extent permitted by law, agencies shall 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.’’ Implementation Guidance at p. 12. E.O. 14005 at Section 5 includes a similar requirement for ‘‘steel, iron, or manufactured goods.’’ However, because the public interest waiver that DOT is proposing in this notice is not based on consideration of the cost advantage of any foreign-sourced steel, iron, or manufactured product content, there is not a specific cost advantage for DOT to consider. DOT will consider all comments received in the 15-day comment period, as required by section 70914(c)(2) of the BIL. DOT will consider comments received after the comment period to the extent practicable. E:\FR\FM\15NON1.SGM 15NON1 68576 Federal Register / Vol. 87, No. 219 / Tuesday, November 15, 2022 / Notices Issued in Washington, DC on: November 8, 2022. Polly E. Trottenberg, Deputy Secretary. DEPARTMENT OF TRANSPORTATION Note: All submissions received, including any personal information therein, will be posted without change or alteration to https:// www.regulations.gov. For more information, you may review DOT’s complete Privacy Act Statement published in the Federal Register on April 11, 2000 (65 FR 19477). Office of the Secretary FOR FURTHER INFORMATION CONTACT: [FR Doc. 2022–24743 Filed 11–14–22; 8:45 am] BILLING CODE 4910–9X–P [Docket No. DOT–OST–2022–0124] Notice That the Build America, Buy America Requirement for Construction Materials Applies Effective November 10, 2022, and Notice of Proposed Waiver of Buy America Requirements for De Minimis Costs, Small Grants, and Minor Components ACTION: lotter on DSK11XQN23PROD with NOTICES1 SUPPLEMENTARY INFORMATION: Notice; request for comments. The Department of Transportation (DOT) seeks to maximize the use of American-made products and materials in all federally funded projects as part of the Biden-Harris Administration’s implementation of the Build America, Buy America Act (the Act), which was included in the historic Bipartisan Infrastructure Law (BIL). The implementation of this law will transform the Department’s approach to domestic procurement requirements. The Department is taking three concurrent actions: (1) DOT is not extending its temporary waiver for construction materials, making that requirement applicable effective November 10, 2022; (2) in a separate notice, DOT is proposing a waiver for narrow categories of contracts and solicitations; and (3) in this notice, DOT is proposing a narrow waiver to allow DOT and its assistance recipients to focus their domestic sourcing efforts on products that provide the greatest manufacturing opportunities for American workers and firms and reduce delays in the delivery of important transportation infrastructure projects that provide jobs and promote economic growth. DOT is seeking comments on whether a waiver of Buy America requirements under the Act and related domestic preference statutes administered by DOT and its Operating Administrations (OAs) should be granted in the public interest for de minimis costs, small grants, and minor components. DATES: Comments must be received by November 20, 2022. ADDRESSES: Please submit your comments to the U.S. Government electronic docket site at https:// www.regulations.gov, Docket: DOT– OST–2022–0124. SUMMARY: VerDate Sep<11>2014 19:16 Nov 14, 2022 Jkt 259001 For questions about this notice, please contact Darren Timothy, DOT Office of the Assistant Secretary for Transportation Policy, at darren.timothy@dot.gov or at 202–366– 4051. For legal questions, please contact Michael A. Smith, DOT Office of the General Counsel, 202–366–2917, or via email at michael.a.smith@dot.gov. Background In January 2021, President Biden issued Executive Order (E.O.) 14005, titled Ensuring the Future is Made in All of America by All of America’s Workers. The E.O. states that the United States Government ‘‘should, consistent with applicable law, use terms and conditions of Federal financial assistance awards and Federal procurements to maximize the use of goods, products, and materials produced in, and services offered in, the United States.’’ DOT is committed to ensuring strong and effective Buy America implementation consistent with E.O. 14005. On November 15, 2021, President Biden signed the Bipartisan Infrastructure Law (BIL) enacted as the Infrastructure Investment and Jobs Act, Public Law 117–58. The BIL includes the Act, Public Law 117–58, div. G §§ 70901–27, which 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 § 70914(a). However, Federal agencies may waive the application of Buy America in certain circumstances, including where the agency finds that applying the Buy America requirement ‘‘would be inconsistent with the public interest.’’ BIL § 70914(b)(1). PO 00000 Frm 00140 Fmt 4703 Sfmt 4703 The Act required the Office of Management and Budget (OMB) to issue guidance to assist in applying the Act’s requirements. BIL § 70915. On April 18, 2022, OMB issued memorandum M–22– 11, ‘‘Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure’’ (‘‘Implementation Guidance’’). Section VII(b) of the Implementation Guidance, Waiver Principles and Criteria, states that ‘‘Federal agencies may wish to consider issuing a limited number of general applicability public interest waivers in the interest of efficiency and to ease burdens for recipients.’’ Implementation Guidance at p. 10. The Implementation Guidance goes on to provide examples of certain types of public interest waivers an agency may consider issuing that would support that goal, including infrastructure project purchases below a de minimis threshold; purchases made under small Federal grant awards; and miscellaneous minor components within iron and steel products. As the Implementation Guidance notes, such waivers could help ‘‘ensure that recipients and Federal agencies make efficient use of limited resources, especially if the cost of processing the individualized waiver(s) would risk exceeding the value of the items waived.’’ Implementation Guidance at p. 11. The Act also provides that the preferences under Section 70914 apply only to the extent that a domestic content procurement preference as described in Section 70914 does not already apply to iron, steel, manufactured products, and construction materials. BIL § 70917(a)– (b). Federal financial assistance programs administered by DOT’s Operating Administrations (OAs) are subject to a variety of mode-specific statutes that apply particular Buy America 1 requirements to iron, steel, and manufactured products, including 49 U.S.C. 50101 (FAA); 23 U.S.C. 313 (FHWA and NHTSA); 49 U.S.C. 22905(a) (FRA); 49 U.S.C. 5323(j) (FTA); and 46 U.S.C. 54101(d)(2) (MARAD). Recent annual appropriations acts have also required DOT to apply the Buy American Act (41 U.S.C. Chapter 83) to funds appropriated under those acts,2 1 In this notice, references to ‘‘Buy America’’ include domestic preference laws called ‘‘Buy American’’ that apply to DOT financial assistance programs. 2 For example, Section 409 of the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2022 states that ‘‘no funds appropriated pursuant to this Act may be expended by an entity unless the entity agrees that E:\FR\FM\15NON1.SGM 15NON1

Agencies

[Federal Register Volume 87, Number 219 (Tuesday, November 15, 2022)]
[Notices]
[Pages 68572-68576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24743]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

[Docket No. DOT-OST-2022-0123]


Notice That the Build America, Buy America Requirement for 
Construction Materials Applies Effective November 10, 2022, and Notice 
of Proposed Waiver of That Requirement for a Narrow Category of 
Contracts and Solicitations

ACTION: Notice; request for comments.

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SUMMARY: The Department of Transportation (DOT) seeks to maximize the 
use of American-made products and materials in all federally funded 
projects as part of the Biden-Harris Administration's implementation of 
the Build America, Buy America Act (the Act), which was included in the 
historic Bipartisan Infrastructure Law (BIL). The implementation of 
this law will transform DOT's approach to domestic procurement 
requirements and is designed to drive significant investment in 
domestic manufacturing, spur job creation and grow the economy. The 
Department is taking three concurrent actions: (1) DOT is not extending 
its temporary waiver for construction materials, making that 
requirement applicable effective November 10, 2022; (2) in a separate 
notice, DOT is proposing a narrow waiver for de minimis costs, small 
grants, and minor components; and (3) in this notice, DOT is proposing 
to take two actions to help transition to the new construction 
materials standard. First, for DOT awards obligated on or after the 
effective date of the final waiver, DOT is proposing to waive the 
construction materials requirements for any contracts entered into 
before November 10, 2022. Second, DOT is proposing to waive the 
construction materials requirements for any contracts entered into 
before March 10, 2023, that result from solicitations published before 
May 14, 2022.

DATES: Comments must be received by November 20, 2022. Late-filed 
comments will be considered to the extent practicable.

ADDRESSES: Please submit your comments to the Federal eRulemaking 
Portal at https://www.regulations.gov/, Docket: DOT-OST-2022-0123.

    Note: All submissions must contain the agency name and the 
docket number. All submissions received, including any personal 
information therein, will be posted without change or alteration to 
https://www.regulations.gov. 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 Darren Timothy, DOT Office of the Assistant Secretary 
for Transportation Policy, at [email protected] or at 202-366-
4051. For legal questions, please contact Michael A. Smith, DOT Office 
of the General Counsel, 202-366-2917, or via email at 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    In January 2021, President Biden issued Executive Order 14005, 
titled ``Ensuring the Future is Made in All of America by All of 
America's Workers,'' launching a whole-of-government initiative to 
strengthen Made in America

[[Page 68573]]

standards. The Executive Order states that the United States Government 
``should, consistent with applicable law, use terms and conditions of 
Federal financial assistance awards and Federal procurements to 
maximize the use of goods, products, and materials produced in, and 
services offered in, the United States.'' DOT is committed to ensuring 
strong and effective Buy America implementation consistent with 
Executive Order 14005 and has a long track record of successfully 
applying Made in America standards to support American workers and 
businesses through its more than $70 billion in grant programs and $700 
million in direct purchases in FY 2020.
    On November 15, 2021, President Biden signed the Infrastructure 
Investment and Jobs Act (IIJA or the Bipartisan Infrastructure Law), 
Public Law 117-58, which includes the Build America, Buy America Act 
(BABA). IIJA div. G Sec. Sec.  70901-27. The Bipartisan Infrastructure 
Law not only makes an historic investment in American transportation--
from roads and bridges to rail to transit--but also greatly strengthens 
Made in America standards. Specifically, BABA expands the coverage and 
application of Buy America preferences in Federal financial assistance 
programs for infrastructure. BABA requires that no later than May 14, 
2022--180 days after the date of enactment--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.'' IIJA Sec.  70914(a).
    BABA provides that the preferences under Section 70914 apply only 
to the extent that a domestic content procurement preference as 
described in Section 70914 does not already apply to iron, steel, 
manufactured products, and construction materials. IIJA Sec.  70917(a)-
(b). This provision allows Federal agencies to preserve existing Buy 
America policies and provisions that meet or exceed the standards 
required by BABA.
    One of the new Buy America preferences included under BABA is for 
construction materials. By May 14, 2022, each covered Federal agency 
must ensure that all manufacturing processes for construction materials 
used in federally assisted infrastructure projects occur in the United 
States. None of the specific statutes that apply particular Buy America 
requirements to the Federal financial assistance programs administered 
by DOT's Operating Administrations specifically covers construction 
materials, other than to the extent that such materials would already 
be considered iron, steel, or manufactured products. IIJA Sec.  70914.
    In addition to establishing Buy America preferences, BABA also 
provides certain statutory authorities for the Made in America Office 
(MIAO) in the Office of Management and Budget (OMB). IIJA Sec. Sec.  
70915(b), 70923. MIAO was first established by Section 4 of Executive 
Order 14005. MIAO's authorities under the Bipartisan Infrastructure Law 
include issuing guidance to assist in applying BABA's requirements and 
issuing standards that define the term ``all manufacturing processes'' 
in the case of construction materials. IIJA Sec.  70915.
    On April 18, 2022, OMB issued memorandum M-22-11, ``Initial 
Implementation Guidance on Application of Buy America Preference in 
Federal Financial Assistance Programs for Infrastructure'' 
(Implementation Guidance). Under Section VIII of the Implementation 
Guidance, ``construction materials'' includes: an article, material, or 
supply--other than an item of primarily iron or steel; a manufactured 
product; cement and cementitious materials; aggregates such as stone, 
sand, or gravel; or aggregate binding agents or additives--that is or 
consists primarily of:

 non-ferrous metals;
 plastic and polymer-based products (including 
polyvinylchloride, composite building materials, and polymers used in 
fiber optic cables);
 glass (including optic glass);
 lumber; or
 drywall.

Implementation Guidance at 13-14.
    The Implementation Guidance states that ``an article, material, or 
supply should only be classified into one of the following categories: 
(1) iron or steel; (2) a manufactured product; or (3) a construction 
material. For ease of administration, an article, material, or supply 
should not be considered to fall into multiple categories.'' Id. at 6. 
The Implementation Guidance also explains that ``items that consist of 
two or more of the listed materials that have been combined together 
through a manufacturing process, and items that include at least one of 
the listed materials combined with a material that is not listed 
through a manufacturing process, should be treated as manufactured 
products, rather than as construction materials.'' Id. at 14. OMB 
characterizes its guidance on which materials are construction 
materials as ``preliminary and non-binding guidance . . . so that 
agencies can begin applying Buy America requirements to those 
materials.'' Id. at 13.
    Section 70915(b) of BABA requires OMB to issue standards that 
define ``all manufacturing processes'' for construction materials. 
Section VIII of the Implementation Guidance provides that, ``[p]ending 
MIAO's issuance of final standards on construction materials, and 
absent any existing applicable standard in law or regulation that meets 
or exceeds these preliminary standards, agencies should consider `all 
manufacturing processes' for construction materials to mean the final 
manufacturing process and the immediately preceding manufacturing stage 
for the construction material.'' Implementation Guidance at 14. After 
considering information received through stakeholder and industry 
outreach, MIAO will issue further guidance that identifies initial 
manufacturing processes for each type of construction material that 
should be considered as part of ``all manufacturing processes.'' Id. 
Agencies are also directed to ``consult with MIAO, as needed, to ensure 
that any waiver issued for construction materials is explicitly 
targeted and time-limited, in order to send a clear market signal that 
additional standards for `all manufacturing processes' in the case of 
construction materials will be forthcoming.'' Id.
    In April 2022, DOT opened a public docket (DOT-OST-2022-0047) to 
receive comments in response to DOT's proposal to waive the 
construction materials requirement for 180 days, to allow for a longer 
transition period. On May 19, 2022, DOT issued a temporary waiver of 
the construction materials requirement for 180 days: from May 14 until 
November 10, 2022. 87 FR 31931. In the waiver notice, DOT stated its 
expectation that States, industry, and other participants establish 
procedures to document compliance.
    During the waiver period, DOT is continuing its engagement to help 
facilitate the creation of robust enforcement and compliance mechanisms 
and to rapidly encourage domestic sourcing of construction materials 
for transportation infrastructure improvements. On July 28, 2022, DOT 
issued a Request for Information (RFI) seeking input from the public, 
including DOT's project sponsors, their contractors and offerors, 
manufacturers, labor unions, transportation and trade associations, and 
other interested parties on implementing BABA's new construction

[[Page 68574]]

materials requirement. 87 FR 45397. DOT asked the public to submit 
comments to the same docket DOT used to propose the 180-day waiver.
    Based on its review of comments received on the RFI and other 
engagement opportunities with stakeholders, and consistent with the 
purpose of the temporary transitional waiver, DOT does not intend to 
modify or extend the existing DOT waiver for construction materials. As 
a result, DOT awards obligated on or after November 10, 2022, from 
financial assistance programs for infrastructure projects will be 
subject to the BABA requirement that construction materials used on 
those projects be produced in the United States.

The Need for a Waiver

    The Implementation Guidance states that a ``waiver in the public 
interest may be appropriate where an agency determines that other 
important policy goals cannot be achieved consistent with the Buy 
America requirements established by the Act.'' Implementation Guidance 
at 10. The guidance also recognizes several instances in which Federal 
agencies may consider issuing a public interest waiver and encourages 
agencies to consider an adjustment period where time-limited waivers 
would allow recipients and agencies to transition to new Buy America 
preferences, rules, and processes. Id. at 11.
    Since enactment of the Bipartisan Infrastructure Law, DOT has 
received numerous inquiries and comments from recipients raising 
concerns about the applicability of the new construction materials 
requirement to projects that already are under construction or are in 
advanced stages of planning. For example, a large West Coast transit 
system asked whether its projects already under construction could 
continue to comply with Buy America requirements as they existed at the 
time of contract award, or if they would be affected by the new 
domestic preference for construction materials. A large northeastern 
transit system similarly asked how the construction materials 
requirement would apply to a major construction project that is 
underway. The project already has some Federal financial assistance, 
and the transit system is concerned about the project remaining 
eligible for additional grant awards on or after November 10.
    Some commenters on the proposed temporary waiver for construction 
materials issued by DOT in April and on the RFI issued in July also 
described problems that would arise if DOT were to apply the 
construction materials requirement to projects that have been under 
development or construction prior to the expiration of the temporary 
waiver on November 10.
    For example, the Santa Clara Valley Transportation Authority asked 
whether the construction materials requirement will apply to 
construction contracts that it already has executed under pre-award 
authority for a project in the Federal Transit Administration's (FTA) 
Expedited Project Delivery Pilot Program, which may receive an FTA 
grant that would be awarded on or after November 10.\1\ The New York 
Metropolitan Transportation Authority requested that DOT waive the 
construction materials requirement for, inter alia, (a) any contracts 
awarded during the waiver period, and (b) any contracts executed during 
the DOT waiver period using pre-award authority if they are funded by 
grants awarded after the waiver period.\2\ Capital Metro requested that 
contracts awarded before the construction materials requirement takes 
effect be allowed to comply with Buy America standards as they existed 
at the time the contract was formed, even if the contract is funded by 
grants obligated in subsequent years.\3\
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    \1\ Comment from the Santa Clara Valley Transportation Authority 
(Aug. 16, 2022), https://www.regulations.gov/comment/DOT-OST-2022-0047-0122.
    \2\ Comment from the New York Metropolitan Transportation 
Authority (May 13, 2022), https://www.regulations.gov/comment/DOT-OST-2022-0047-0037.
    \3\ Comment from the Capital Metropolitan Transportation 
Authority (May 13, 2022), https://www.regulations.gov/comment/DOT-OST-2022-0047-0049.
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    Several State departments of transportation expressed similar 
concerns in their submissions to the docket. For example, the New 
Jersey Department of Transportation commented that redesigning projects 
that are in an advanced state of design could be expensive and 
negatively affect project delivery and requested that such projects be 
exempt from the new construction materials requirement.\4\ Similarly, 
the South Dakota Department of Transportation commented that it is not 
appropriate or feasible to apply the construction materials requirement 
to projects where bids were already submitted, and contracts awarded, 
based on using materials with no country-of-origin specifications; 
doing so would possibly require cancelling current contracts and would 
add delay and additional costs for project sponsors.\5\ The California 
Department of Transportation reported that it has many multi-year 
contracts in place that incorporate Buy America standards as they 
existed before BABA and asked whether these contracts will remain 
eligible for Federal grants obligated on or after November 10.\6\ 
Additionally, a joint comment submitted by the transportation 
departments of Idaho, Montana, North Dakota, South Dakota, and Wyoming 
requested that DOT not apply the new construction materials requirement 
to projects where bids were already submitted and awarded without 
country-of-origin requirements, because doing so could require project 
sponsors and contractors to cancel orders or cancel contracts and incur 
additional costs and delays.\7\
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    \4\ Comment from the New Jersey Department of Transportation 
(Aug. 12, 2022), https://www.regulations.gov/comment/DOT-OST-2022-0047-0111.
    \5\ Comment from the South Dakota Department of Transportation 
(Aug. 18, 2022), https://www.regulations.gov/comment/DOT-OST-2022-0047-0167.
    \6\ Comment from the California Department of Transportation 
(Aug. 18, 2022), https://www.regulations.gov/comment/DOT-OST-2022-0047-0170.
    \7\ Comment from the Transportation Departments of Idaho, 
Montana, North Dakota, South Dakota, and Wyoming (Aug. 17, 2022), 
https://www.regulations.gov/comment/DOT-OST-2022-0047-0132.
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    Based on these and other inquiries and comments, DOT has identified 
certain categories of projects for which application of the BABA 
construction materials requirement after the DOT waiver expires would 
present significant concerns:
    (1) projects that have received DOT financial assistance awards 
before November 10, 2022--and sometimes even prior to enactment of the 
Bipartisan Infrastructure Law--that have completed procurements 
involving construction materials or currently are in the process of 
soliciting construction contracts, and will receive additional DOT 
financial assistance that will be obligated on or after November 10, 
2022;
    (2) projects that will be funded by DOT grants obligated on or 
after November 10, 2022, for which recipients have exercised DOT-
approved pre-award authority before November 10 to execute or solicit 
construction contracts prior to grant award;
    (3) projects that will be funded by DOT credit assistance obligated 
on or after November 10, 2022, for which recipients solicited 
construction contracts before May 14, 2022;
    Requiring compliance with the BABA domestic preference for 
construction materials would be unduly burdensome for projects that 
already have executed construction contracts, because they already have 
received DOT financial

[[Page 68575]]

assistance, are exercising DOT-approved pre-award authority, or will 
receive DOT credit assistance for activities already in progress.\8\ 
Under these circumstances, application of the construction materials 
requirement could compel contract terminations and cause projects to be 
put on hold while conducting new procurements. Accordingly, application 
of the construction materials requirement to these categories of 
projects would result in unacceptable delay, increased project costs, 
and potential loss of jobs while project construction is paused.
---------------------------------------------------------------------------

    \8\ For information related to pre-award costs, see 2 CFR 
200.458, ``Pre-award costs.'' Some DOT OAs have program-specific 
guidance on pre-award authority, including FTA's ``Notice of FTA 
Transit Program Changes, Authorized Funding Levels and 
Implementation of the Infrastructure Investment and Jobs Act; and 
FTA Fiscal Year 2022 Apportionments, Allocations, Program 
Information and Interim Guidance'', 87 FR 25362 (April 28, 2022).
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    Additionally, for large infrastructure projects, the preparation of 
solicitations by project sponsors and the preparation of bids and 
proposals by offerors require significant time and investment, and are 
based on project design that occurs well in advance of the 
solicitations. DOT recipients throughout the country have exercised 
pre-award authority to solicit construction contracts prior to the May 
14, 2022, effective date of the construction materials requirement, for 
which contract award will not occur until on or after November 10. 
Applicants to DOT's credit assistance programs often have solicitations 
underway concurrent with the Department's application and 
creditworthiness reviews. In these instances, amending the 
specifications of the contract solicitations to impose new requirements 
that were not previously applicable would cause considerable delay.

Proposed Waiver and Request for Comments

    DOT recognizes the importance of ensuring the use of domestically 
produced construction materials on infrastructure projects receiving 
Federal assistance and the need to implement the requirement in a way 
that does not delay delivery of projects that were sufficiently 
advanced before the requirement applies to DOT funding. Therefore, for 
DOT awards obligated on or after the effective date of the waiver, DOT 
proposes to issue a general public interest waiver of BABA's domestic 
preference for construction materials for:
    (1) Any contract entered into before November 10, 2022; and
    (2) Any contract entered into before March 10, 2023, if the 
contract results from a solicitation published prior to May 14, 2022.
    In these limited circumstances, DOT recipients incurred costs, 
executed contracts, are conducting procurements with long lead times 
prior to the BABA construction materials requirement taking effect, 
though they will seek Federal reimbursement through grants obligated on 
or after November 10, 2022. This proposed waiver would preserve the 
eligibility of costs a project sponsor already incurred or estimated 
before the construction materials requirement took effect. The purpose 
of covering contracts through March 10, 2023, for contracts resulting 
from solicitations published before the May 14, 2022, BABA effective 
date, is to provide recipients with reasonable time to complete 
procurements. Project sponsors and offerors have invested significant 
resources in such procurements, which are based on design and 
engineering conducted before the BABA construction materials 
requirement went into effect. A project sponsor whose solicitation does 
not result in a contract before March 10, 2023, would have to take such 
measures as may be necessary to ensure that its contract will comply 
with the construction materials requirement.
    If issued, this waiver would apply only to projects funded by DOT 
financial assistance obligated on or after the effective date of the 
waiver. DOT financial assistance obligated before the expiration of the 
temporary DOT waiver on November 10, 2022 is not subject to the BABA's 
construction materials requirement.
    DOT requests comments on the applicable dates proposed in this 
waiver. DOT also requests comments on whether this waiver should be 
time-limited or phased for certain long-term contracts.
    In order to support a more efficient and targeted process for 
future waivers, DOT requests comment on whether there are other 
scenarios where project delivery would be significantly disrupted or 
delayed because of circumstances such as the level of design and 
engineering for a project that has occurred in relation to the 
effective date of the construction materials preference and provide 
specific information as to the construction materials which may not be 
available. For example, are there specific circumstances that may 
justify a project specific waiver, such as the unavailability of 
specific construction materials manufactured in the United States in 
sufficient quantity or quality for a particular DOT-funded 
transportation project or category of projects? Additionally, are there 
transportation projects, such as projects in various stages of FTA's 
Capital Investment Grants program, for which a waiver may be justified 
due to significant delay in project delivery. If completed design and 
engineering must be revised to comply with the construction materials 
preference after November 10, 2022, DOT seeks comments on the length 
and type of waiver which may be necessary to mitigate a significant 
delay.
    This proposed waiver would apply to infrastructure projects funded 
by financial assistance administered by the Office of Secretary of 
Transportation or any of DOT's Operating Administrations with financial 
assistance programs, including the Federal Aviation Administration 
(FAA); the Federal Highway Administration (FHWA); the Federal Motor 
Carrier Safety Administration; the Federal Railroad Administration 
(FRA); the Federal Transit Administration (FTA); the Maritime 
Administration (MARAD); the National Highway Traffic Administration 
(NHTSA); and the Pipeline and Hazardous Materials Safety Administration 
(PHMSA).
    This proposed waiver would not affect any domestic preference 
requirements under other authorities, including DOT's non-BABA domestic 
preference statutes: 49 U.S.C. 50101 (FAA); 23 U.S.C. 313 (FHWA and 
NHTSA); 49 U.S.C. 22905(a) (FRA); 49 U.S.C. 5323(j) (FTA); and 46 
U.S.C. 54101(d)(2) (MARAD).
    The Implementation Guidance also provides that, before granting a 
waiver in the public interest, to the extent permitted by law, agencies 
shall 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.'' Implementation Guidance at p. 
12. E.O. 14005 at Section 5 includes a similar requirement for ``steel, 
iron, or manufactured goods.'' However, because the public interest 
waiver that DOT is proposing in this notice is not based on 
consideration of the cost advantage of any foreign-sourced steel, iron, 
or manufactured product content, there is not a specific cost advantage 
for DOT to consider.
    DOT will consider all comments received in the 15-day comment 
period, as required by section 70914(c)(2) of the BIL. DOT will 
consider comments received after the comment period to the extent 
practicable.


[[Page 68576]]


    Issued in Washington, DC on: November 8, 2022.
Polly E. Trottenberg,
Deputy Secretary.
[FR Doc. 2022-24743 Filed 11-14-22; 8:45 am]
BILLING CODE 4910-9X-P
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