Notice of Proposed Nonavailability Waiver of Buy America Requirements for the Nevada Department of Transportation To Purchase Certain High-Speed Rail Components, 89015-89017 [2023-28424]

Download as PDF Federal Register / Vol. 88, No. 246 / Tuesday, December 26, 2023 / Notices DEPARTMENT OF TRANSPORTATION Federal Railroad Administration [Docket No. FRA–2023–0099] Notice of Proposed Nonavailability Waiver of Buy America Requirements for the Nevada Department of Transportation To Purchase Certain High-Speed Rail Components Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Notice; request for comment. AGENCY: The Federal Railroad Administration (FRA) is seeking comments on whether to grant a waiver of its Buy America requirements to the Nevada Department of Transportation (NVDOT) for certain components that are not produced in the United States for use in a high-speed passenger train project between Las Vegas, NV and Rancho Cucamonga, CA (Project). FRA selected the Project for funding under the Federal-State Partnership for Intercity Passenger Rail Program (FSP Program), and therefore, FRA’s Buy America requirements apply to the Project. FRA’s Buy America requirements include both FRA’s statutory requirements, which require 100 percent of the manufactured products and steel and iron used in an FRA-funded project to be produced in the United States, and the Build America, Buy America Act (BABA), which requires that all construction materials used in the FRA-funded project be produced in the United States. FRA is not proposing to waive the applicable BABA requirements for construction materials used in the Project, and therefore this proposed waiver would not apply to the construction materials used in the Project. The proposed waiver would apply to the trainset, signal systems, high-speed rail turnout and fire alarm systems based on the domestic nonavailability of such components, as identified by NVDOT’s railroad operating partner Brightline West and the two potential suppliers (Alstom and Siemens) of the rolling stock and signaling systems for the project. NVDOT and Brightline estimate that over 95 percent of the total direct dollar expenditures for the Project would be spent on domestically sourced products and labor, including 100 percent of the civil infrastructure costs. DATES: Comments must be received by January 25, 2024. ADDRESSES: Please submit all comments electronically to the Federal khammond on DSKJM1Z7X2PROD with NOTICES SUMMARY: VerDate Sep<11>2014 20:25 Dec 22, 2023 Jkt 262001 89015 eRulemaking Portal. Go to https:// www.regulations.gov and follow the instructions for submitting comments. Instructions: All submissions must refer to the Federal Railroad Administration and the docket number in this notice (FRA–2023–0099). Note that all submissions received, including any personal information provided, will be posted without change and will be available to the public on https:// www.regulations.gov. You may review DOT’s complete Privacy Act Statement in the Federal Register published April 11, 2000 (65 FR 19477), or at https:// www.transportation.gov/privacy. FOR FURTHER INFORMATION CONTACT: For questions about this notice, please contact Ryan Arbuckle, Chief, Program Coordination and Strategy, Office of Railroad Development, FRA, telephone: (202) 617–0212, email: Ryan.Arbuckle@ dot.gov. For legal questions, please contact Faris Mohammed, AttorneyAdvisor, Office of the Chief Counsel, FRA, telephone: (202) 763–3230, email: Faris.Mohammed@dot.gov. SUPPLEMENTARY INFORMATION: oversight of NVDOT, would construct the Project, which would consist of a fully-grade separated high-speed train system largely within the I–15 right-ofway with stations in Rancho Cucamonga, Hesperia, and Victor Valley, CA, and Las Vegas, NV. Brightline West would then operate and maintain the system. Consistent with FRA’s March Notice, NVDOT and Brightline West submitted a DSWP,2 which included a request for a waiver of FRA’s Buy America requirements 3 for certain components of the high-speed rail system that the applicant indicated are not produced in the United States. FRA reviewed the DSWP, including the market research conducted by Brightline West and their consideration of qualifying alternate items, products, or materials. FRA selected the Project to receive $3,000,000,000 in funding under the FSP Program. This notice summarizes FRA’s Buy America requirements, NVDOT and Brightline West’s request for a waiver, and FRA’s proposed waiver decision. I. Project History and Background On December 7, 2022, FRA published a Notice of Funding Opportunity (NOFO) announcing application requirements and procedures to obtain grant funding under the FSP Program for projects not located on the Northeast Corridor for Fiscal Year 2022. The FSP Program provides a Federal funding opportunity to improve passenger rail service, including privately operated intercity passenger rail service if an eligible applicant is involved. On February 3, 2023, FRA published a notice adding funding and extending the application period for the FSP Program NOFO. On March 22, 2023, FRA published a notice (March Notice) inviting high-speed rail project sponsors to voluntarily submit, in advance of being selected to receive FRA funding, their domestic sourcing and workforce plans (DSWP) to demonstrate how they will maximize the use of domestic goods, products and materials, consistent with FRA’s Buy America requirements.1 NVDOT submitted an application for FSP Program funding expressing its intent to partner with Brightline West, a privately-owned railroad, to advance a high-speed passenger rail system between Las Vegas, NV and Rancho Cucamonga, CA (Project). Brightline West, under the supervision and II. FRA’s Buy America Requirements and Policy Projects that receive funding under the FSP Program are subject to FRA’s Buy America requirements. FRA’s Buy America requirements include both: (i) FRA’s statutory requirements for steel, iron, and manufactured goods at 49 U.S.C. 22905(a); and (ii) requirements under the Build America, Buy America Act (BABA) and guidance at 2 CFR 184.6 for construction materials. This means that FRA can fund a project only if the steel, iron, and manufactured goods used in the project are produced in the United States. 49 U.S.C. 22905(a). In addition, FRA-funded projects must also comply with the relevant provisions of BABA, including the requirement that all construction materials used in the project must also be produced in the United States. Public Law 117–58, 70914(a); 2 CFR 184.6. FRA strictly enforces compliance with its Buy America requirements to ensure that FRA-funded projects maximize the use of materials produced in the United States. FRA expects grantees to work with suppliers to conduct thorough market research and adequately consider, where appropriate, qualifying alternate items, products, or materials. 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). PO 00000 Frm 00152 Fmt 4703 Sfmt 4703 2 The DSWP contains proprietary information that FRA has determined is confidential business information. As such, FRA is not making the DSWP available to the public at this time; however, pertinent non-proprietary information provided in the DSWP is discussed in this notice. 3 For FRA’s Buy America requirements, see section II. E:\FR\FM\26DEN1.SGM 26DEN1 89016 Federal Register / Vol. 88, No. 246 / Tuesday, December 26, 2023 / Notices Compliance with FRA’s Buy America requirement supports domestic industry and well-paying jobs. III. FRA’s Authority To Waive Buy America Requirements There are limited circumstances in which FRA can waive its Buy America requirements under section 22905(a) and BABA. FRA will grant a waiver request that is consistent with the statutory criteria for a waiver and where a project sponsor has adequately justified the need for a waiver. FRA may waive its Buy America requirements if FRA determines that: applying the Buy America requirements would be inconsistent with the public interest; the steel, iron, and goods produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality; rolling stock or power train equipment cannot be bought and delivered in the United States within a reasonable time; or including domestic material will increase the cost of the overall project by more than 25 percent. 49 U.S.C. 22905(a)(2); see also Public Law 117–58, 70914(b)(prescribing similar statutory conditions for waivers); and 2 CFR 184.7 (doing the same). If FRA determines a waiver is appropriate, FRA will provide notice and seek comment from the public in accordance with the requirements of both section 22905(a) and BABA, if applicable. In addition, FRA will consult with the National Institute of Standards and Technology’s Manufacturing Extension Partnership before granting a waiver, consistent with section 70916 of BABA. Unless otherwise specified, waiver decisions are non-precedential and are only applicable to the entities and components for the specific project identified in the final decision. khammond on DSKJM1Z7X2PROD with NOTICES IV. Summary of the Request for Waiver In response to FRA’s March Notice, NVDOT and Brightline West submitted a DSWP outlining the efforts Brightline West would take to ensure maximum use of available domestic materials in the project if NVDOT’s application is selected for funding under the FSP Program. In the DSWP, NVDOT and Brightline West explain that certain components intended to be used on the project are not produced in the United States and thus request a waiver of FRA’s Buy America requirements under section 22905(a) for these components. No construction materials covered under BABA are included in the waiver request. VerDate Sep<11>2014 20:25 Dec 22, 2023 Jkt 262001 V. Summary of Components Requiring Waiver Brightline West sought to identify a domestic supplier for the rolling stock and signal system components of the Project. Brightline West received two responses to its Request for Interest, from Siemens and Alstom, who represented they could provide highspeed rail components that meet Brightline West’s specifications and applicable FRA safety requirements. However, both suppliers certified that certain non-domestic components would be required to meet the specifications, as those types of highspeed rail equipment are not produced in the United States. Brightline West consulted with each potential supplier so that their lists of non-domestic components would include only those components for which there is no available domestic option. Brightline West received responses from both Siemens and Alstom for the signal systems and both responses indicated a need for a waiver for certain components. Brightline West selected Siemens as the preferred vendor for the signal systems for the Project, and therefore the proposed waiver only describes the non-domestic components in Siemens’ proposal. For rolling stock, both Alstom and Siemens indicated that certain components that perform safety critical functions for the operation of the highspeed rail system would not be compliant with FRA’s Buy America requirements. At the time of this proposed waiver, Brightline West has not selected its preferred vendor for rolling stock. The non-domestic components identified by Brightline West that would require a waiver from FRA’s Buy America requirements are described in this section.4 a. Siemens Proposal—Non-Domestic Rolling Stock Components Siemens is proposing to introduce the next generation Velaro NOVO ElectricMultiple-Unit (EMU) for the Project. As this would be the first introduction of this technology into the United States, Siemens would plan for the first two trainsets to be manufactured and assembled in its German headquarters with American workers present to witness and learn in advance of commencing the manufacturing and assembly of the remaining eight 4 The non-domestic component lists may vary among suppliers depending on the specific manufacturing processes used and system design. In highly specialized systems, such has high-speed rail trainsets, components cannot be easily substituted without potential impacts to performance and safety. PO 00000 Frm 00153 Fmt 4703 Sfmt 4703 trainsets at a new factory, which would be constructed in Nevada. Under the Siemens proposal, the following components would not be produced in the United States: • First Two Complete Trainsets • Car Shells for All 10 Trainsets (shell structure, frame, vehicle paintwork) b. Alstom Proposal—Non-Domestic Rolling Stock Components Alstom is proposing to adapt the Avelia technology planned for deployment on the NEC for use in the Project by increasing power capacity and traction to achieve the speed and performance capability required by Brightline West, and consistent with that achieved with its TGV trains in Europe. Manufacturing would take place at its existing facility in Hornell, New York, where all 10 trainsets would be built. For this procurement, the following components would not be produced in the United States: • Car Shells (shell structure, frame, vehicle paintwork) • Brake Control Units c. Non-Domestic Infrastructure Components Brightline West notes that the Project would also require the use of specialty high-speed rail turnouts to allow trains to smoothly diverge to a passing siding, which plays a key role in safety and stability of train operations. In addition, the Project would require fire alarm panels and devices for use in stations, garages, and maintenance facilities. Brightline West has researched known suppliers and was not able to identify a domestic manufacturer for the following components: • Eurobalises and Euroloops 5 • Counting Heads and Axle Counter Sensors • Truck Press (test stand) • Turnout Systems including Derailers • Fire Alarm Systems VI. Applicant’s Request for Waiver In their request for a waiver, NVDOT and Brightline West indicated that they believe a waiver is justified because no manufacturers exist in the United States that can produce the components described above, and that the use of these non-domestic components is necessary to ensure the safety and reliability of the high-speed rail system. 5 Eurobalise and euroloops are components installed between the rails of a railway that are part of the European train control system used by Siemens. These components store infrastructure data (e.g., position reference, speed limits, line gradient, works on the line, etc) and can send this information to the train. E:\FR\FM\26DEN1.SGM 26DEN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 88, No. 246 / Tuesday, December 26, 2023 / Notices NVDOT’s and Brightline West’s DSWP further explains that over 95 percent of the total direct dollar expenditures for the Project would be spent on domestically sourced products and labor, including 100 percent of the civil infrastructure costs. In addition, the Project is expected to support approximately 35,000 domestic jobs across the construction period and includes a project labor agreement (PLA). The operator has reached an agreement with rail labor which may result in ongoing operations and maintenance work being performed by union labor.6 The DSWP further explains efforts Brightline West would take to facilitate, where feasible, a ramp up in domestic production capabilities for the materials that are not currently produced in the United States on future high-speed rail projects in the United States. In the absence of a waiver, NVDOT and Brightline West argue that the Project could not be delivered within the planned schedule and budget because there is no domestic supplier for the components listed above. To ensure safety of the system, Brightline West expects to conform with FRA’s Passenger Equipment Safety Standards governing Tier III equipment,7 which allows for service-proven high-speed rail technologies from around the world (in this case Europe) to be introduced to the United States with minimal modification. For example, the high-speed rolling stock aluminum car shells are critical to the achievement of high speeds, due to aluminum’s strength and light weight, and it has taken decades of development in technology by highly specialized experts that can shape, mold, and weld these car shells to the required safety and quality standards, including crashworthiness. There is currently no available aluminum car shell manufacturer in the United States, and it would take years to establish a domestic, quality-controlled manufacturing capability. The relatively small size of the Project’s order (ten trainsets) is also not considered by the applicant to be sufficient to justify the significant capital investments required to initiate development of domestic production capacity for those products. In its request for a waiver, NVDOT and Brightline West explain how they conducted due diligence and performed thorough market research to adequately 6 In March 2023, thirteen rail unions representing more than 160,000 workers signed a Memorandum of Understanding with Brightline West, establishing a commitment for the use of highly skilled union labor required to operate and maintain the System. 7 See 49 CFR part 238. VerDate Sep<11>2014 20:25 Dec 22, 2023 Jkt 262001 consider qualifying alternate items, products, or materials. Brightline West engaged with both Alstom and Siemens to determine the systems that could be manufactured domestically. These efforts included considering options for the establishment of either temporary or permanent manufacturing facilities, alternative manufacturing processes, and system design. In addition, Brightline West conducted market research to identify a domestic supplier for high-speed turnout and fire alarm components. However, Brightline West was unable to identify a domestic supplier for the rolling stock, signal systems, turnout, and fire alarm components. VII. Proposed Waiver Based on its review of the waiver request and DSWP, FRA proposes to waive its Buy America requirements for the following components for the Project: • The infrastructure components listed above in Section V(c); and the rolling stock components listed in either: Æ Section V(a), if Siemens is selected as the preferred supplier; or Æ Section V(b), if Alstom is selected as the preferred supplier. The proposed waiver would apply only to components listed above for use in the Project, as described in the grant agreement between FRA and NVDOT. FRA is not proposing to waive any requirements under BABA, as the proposed waiver does not apply to any construction materials used in the Project. The proposed waiver would not apply to other FRA grantees or to other grants that might be made to NVDOT or Brightline West for other projects (including any future phases related to the Project). VIII. Request for Comment FRA will consider comments received during the comment period, consistent with BABA and 2 CFR 184.7. FRA may consider comments received after this period to the extent practicable. Consistent with 49 U.S.C. 22905(a)(4), if FRA determines it is necessary to waive its Buy America requirements, FRA will publish its decision in the Federal Register and provide an opportunity for public comment on such finding for a reasonable period of time not to exceed 15 days. After such period, FRA’s decision will be effective. Issued in Washington, DC. Amitabha Bose, Administrator. [FR Doc. 2023–28424 Filed 12–22–23; 8:45 am] BILLING CODE 4910–06–P PO 00000 Frm 00154 Fmt 4703 Sfmt 4703 89017 DEPARTMENT OF TRANSPORTATION Federal Railroad Administration [Docket No. FRA–2023–0002–N–36] Proposed Agency Information Collection Activities; Comment Request Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Notice of information collection; request for comment. AGENCY: Under the Paperwork Reduction Act of 1995 (PRA) and its implementing regulations, FRA seeks approval of the Information Collection Request (ICR) summarized below. Before submitting this ICR to the Office of Management and Budget (OMB) for approval, FRA is soliciting public comment on specific aspects of the activities identified in the ICR. DATES: Interested persons are invited to submit comments on or before February 9, 2024. ADDRESSES: Written comments and recommendations for the proposed ICR should be submitted on regulations.gov to the docket, Docket No. FRA–2023– 0002. All comments received will be posted without change to the docket, including any personal information provided. Please refer to the assigned OMB control number (2130–0533) in any correspondence submitted. FRA will summarize comments received in a subsequent 30-day notice and include them in its information collection submission to OMB for approval. FOR FURTHER INFORMATION CONTACT: Ms. Arlette Mussington, Information Collection Clearance Officer, at email: arlette.mussington@dot.gov or telephone: (571) 609–1285, or Ms. Joanne Swafford, Information Collection Clearance Officer, at email: joanne. swafford@dot.gov or telephone: (757) 897–9908. SUPPLEMENTARY INFORMATION: The PRA, 44 U.S.C. 3501–3520, and its implementing regulations, 5 CFR part 1320, require Federal agencies to provide 60 days’ notice to the public to allow comment on information collection activities before seeking OMB approval of the activities. See 44 U.S.C. 3506, 3507; 5 CFR 1320.8 through 1320.12. Specifically, FRA invites interested parties to comment on the following ICR regarding: (1) whether the information collection activities are necessary for FRA to properly execute its functions, including whether the activities will have practical utility; (2) the accuracy of FRA’s estimates of the SUMMARY: E:\FR\FM\26DEN1.SGM 26DEN1

Agencies

[Federal Register Volume 88, Number 246 (Tuesday, December 26, 2023)]
[Notices]
[Pages 89015-89017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28424]



[[Page 89015]]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket No. FRA-2023-0099]


Notice of Proposed Nonavailability Waiver of Buy America 
Requirements for the Nevada Department of Transportation To Purchase 
Certain High-Speed Rail Components

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Notice; request for comment.

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SUMMARY: The Federal Railroad Administration (FRA) is seeking comments 
on whether to grant a waiver of its Buy America requirements to the 
Nevada Department of Transportation (NVDOT) for certain components that 
are not produced in the United States for use in a high-speed passenger 
train project between Las Vegas, NV and Rancho Cucamonga, CA (Project). 
FRA selected the Project for funding under the Federal-State 
Partnership for Intercity Passenger Rail Program (FSP Program), and 
therefore, FRA's Buy America requirements apply to the Project. FRA's 
Buy America requirements include both FRA's statutory requirements, 
which require 100 percent of the manufactured products and steel and 
iron used in an FRA-funded project to be produced in the United States, 
and the Build America, Buy America Act (BABA), which requires that all 
construction materials used in the FRA-funded project be produced in 
the United States. FRA is not proposing to waive the applicable BABA 
requirements for construction materials used in the Project, and 
therefore this proposed waiver would not apply to the construction 
materials used in the Project. The proposed waiver would apply to the 
trainset, signal systems, high-speed rail turnout and fire alarm 
systems based on the domestic nonavailability of such components, as 
identified by NVDOT's railroad operating partner Brightline West and 
the two potential suppliers (Alstom and Siemens) of the rolling stock 
and signaling systems for the project. NVDOT and Brightline estimate 
that over 95 percent of the total direct dollar expenditures for the 
Project would be spent on domestically sourced products and labor, 
including 100 percent of the civil infrastructure costs.

DATES: Comments must be received by January 25, 2024.

ADDRESSES: Please submit all comments electronically to the Federal 
eRulemaking Portal. Go to https://www.regulations.gov and follow the 
instructions for submitting comments.
    Instructions: All submissions must refer to the Federal Railroad 
Administration and the docket number in this notice (FRA-2023-0099). 
Note that all submissions received, including any personal information 
provided, will be posted without change and will be available to the 
public on https://www.regulations.gov. You may review DOT's complete 
Privacy Act Statement in the Federal Register published April 11, 2000 
(65 FR 19477), or at https://www.transportation.gov/privacy.

FOR FURTHER INFORMATION CONTACT: For questions about this notice, 
please contact Ryan Arbuckle, Chief, Program Coordination and Strategy, 
Office of Railroad Development, FRA, telephone: (202) 617-0212, email: 
[email protected]. For legal questions, please contact Faris 
Mohammed, Attorney-Advisor, Office of the Chief Counsel, FRA, 
telephone: (202) 763-3230, email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Project History and Background

    On December 7, 2022, FRA published a Notice of Funding Opportunity 
(NOFO) announcing application requirements and procedures to obtain 
grant funding under the FSP Program for projects not located on the 
Northeast Corridor for Fiscal Year 2022. The FSP Program provides a 
Federal funding opportunity to improve passenger rail service, 
including privately operated intercity passenger rail service if an 
eligible applicant is involved. On February 3, 2023, FRA published a 
notice adding funding and extending the application period for the FSP 
Program NOFO. On March 22, 2023, FRA published a notice (March Notice) 
inviting high-speed rail project sponsors to voluntarily submit, in 
advance of being selected to receive FRA funding, their domestic 
sourcing and workforce plans (DSWP) to demonstrate how they will 
maximize the use of domestic goods, products and materials, consistent 
with FRA's Buy America requirements.\1\
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    \1\ Advancing High-Speed Rail Projects Intended for Operations 
Over 160 Miles Per Hour Through Domestic Sourcing Plans and Buy 
America Compliance, 88 FR 17289 (March 22, 2023).
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    NVDOT submitted an application for FSP Program funding expressing 
its intent to partner with Brightline West, a privately-owned railroad, 
to advance a high-speed passenger rail system between Las Vegas, NV and 
Rancho Cucamonga, CA (Project). Brightline West, under the supervision 
and oversight of NVDOT, would construct the Project, which would 
consist of a fully-grade separated high-speed train system largely 
within the I-15 right-of-way with stations in Rancho Cucamonga, 
Hesperia, and Victor Valley, CA, and Las Vegas, NV. Brightline West 
would then operate and maintain the system.
    Consistent with FRA's March Notice, NVDOT and Brightline West 
submitted a DSWP,\2\ which included a request for a waiver of FRA's Buy 
America requirements \3\ for certain components of the high-speed rail 
system that the applicant indicated are not produced in the United 
States. FRA reviewed the DSWP, including the market research conducted 
by Brightline West and their consideration of qualifying alternate 
items, products, or materials. FRA selected the Project to receive 
$3,000,000,000 in funding under the FSP Program.
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    \2\ The DSWP contains proprietary information that FRA has 
determined is confidential business information. As such, FRA is not 
making the DSWP available to the public at this time; however, 
pertinent non-proprietary information provided in the DSWP is 
discussed in this notice.
    \3\ For FRA's Buy America requirements, see section II.
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    This notice summarizes FRA's Buy America requirements, NVDOT and 
Brightline West's request for a waiver, and FRA's proposed waiver 
decision.

II. FRA's Buy America Requirements and Policy

    Projects that receive funding under the FSP Program are subject to 
FRA's Buy America requirements. FRA's Buy America requirements include 
both: (i) FRA's statutory requirements for steel, iron, and 
manufactured goods at 49 U.S.C. 22905(a); and (ii) requirements under 
the Build America, Buy America Act (BABA) and guidance at 2 CFR 184.6 
for construction materials. This means that FRA can fund a project only 
if the steel, iron, and manufactured goods used in the project are 
produced in the United States. 49 U.S.C. 22905(a). In addition, FRA-
funded projects must also comply with the relevant provisions of BABA, 
including the requirement that all construction materials used in the 
project must also be produced in the United States. Public Law 117-58, 
70914(a); 2 CFR 184.6.
    FRA strictly enforces compliance with its Buy America requirements 
to ensure that FRA-funded projects maximize the use of materials 
produced in the United States. FRA expects grantees to work with 
suppliers to conduct thorough market research and adequately consider, 
where appropriate, qualifying alternate items, products, or materials.

[[Page 89016]]

Compliance with FRA's Buy America requirement supports domestic 
industry and well-paying jobs.

III. FRA's Authority To Waive Buy America Requirements

    There are limited circumstances in which FRA can waive its Buy 
America requirements under section 22905(a) and BABA. FRA will grant a 
waiver request that is consistent with the statutory criteria for a 
waiver and where a project sponsor has adequately justified the need 
for a waiver.
    FRA may waive its Buy America requirements if FRA determines that: 
applying the Buy America requirements would be inconsistent with the 
public interest; the steel, iron, and goods produced in the United 
States are not produced in a sufficient and reasonably available amount 
or are not of a satisfactory quality; rolling stock or power train 
equipment cannot be bought and delivered in the United States within a 
reasonable time; or including domestic material will increase the cost 
of the overall project by more than 25 percent. 49 U.S.C. 22905(a)(2); 
see also Public Law 117-58, 70914(b)(prescribing similar statutory 
conditions for waivers); and 2 CFR 184.7 (doing the same).
    If FRA determines a waiver is appropriate, FRA will provide notice 
and seek comment from the public in accordance with the requirements of 
both section 22905(a) and BABA, if applicable. In addition, FRA will 
consult with the National Institute of Standards and Technology's 
Manufacturing Extension Partnership before granting a waiver, 
consistent with section 70916 of BABA. Unless otherwise specified, 
waiver decisions are non-precedential and are only applicable to the 
entities and components for the specific project identified in the 
final decision.

IV. Summary of the Request for Waiver

    In response to FRA's March Notice, NVDOT and Brightline West 
submitted a DSWP outlining the efforts Brightline West would take to 
ensure maximum use of available domestic materials in the project if 
NVDOT's application is selected for funding under the FSP Program. In 
the DSWP, NVDOT and Brightline West explain that certain components 
intended to be used on the project are not produced in the United 
States and thus request a waiver of FRA's Buy America requirements 
under section 22905(a) for these components. No construction materials 
covered under BABA are included in the waiver request.

V. Summary of Components Requiring Waiver

    Brightline West sought to identify a domestic supplier for the 
rolling stock and signal system components of the Project. Brightline 
West received two responses to its Request for Interest, from Siemens 
and Alstom, who represented they could provide high-speed rail 
components that meet Brightline West's specifications and applicable 
FRA safety requirements. However, both suppliers certified that certain 
non-domestic components would be required to meet the specifications, 
as those types of high-speed rail equipment are not produced in the 
United States. Brightline West consulted with each potential supplier 
so that their lists of non-domestic components would include only those 
components for which there is no available domestic option.
    Brightline West received responses from both Siemens and Alstom for 
the signal systems and both responses indicated a need for a waiver for 
certain components. Brightline West selected Siemens as the preferred 
vendor for the signal systems for the Project, and therefore the 
proposed waiver only describes the non-domestic components in Siemens' 
proposal.
    For rolling stock, both Alstom and Siemens indicated that certain 
components that perform safety critical functions for the operation of 
the high-speed rail system would not be compliant with FRA's Buy 
America requirements. At the time of this proposed waiver, Brightline 
West has not selected its preferred vendor for rolling stock. The non-
domestic components identified by Brightline West that would require a 
waiver from FRA's Buy America requirements are described in this 
section.\4\
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    \4\ The non-domestic component lists may vary among suppliers 
depending on the specific manufacturing processes used and system 
design. In highly specialized systems, such has high-speed rail 
trainsets, components cannot be easily substituted without potential 
impacts to performance and safety.
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a. Siemens Proposal--Non-Domestic Rolling Stock Components

    Siemens is proposing to introduce the next generation Velaro NOVO 
Electric-Multiple-Unit (EMU) for the Project. As this would be the 
first introduction of this technology into the United States, Siemens 
would plan for the first two trainsets to be manufactured and assembled 
in its German headquarters with American workers present to witness and 
learn in advance of commencing the manufacturing and assembly of the 
remaining eight trainsets at a new factory, which would be constructed 
in Nevada. Under the Siemens proposal, the following components would 
not be produced in the United States:

 First Two Complete Trainsets
 Car Shells for All 10 Trainsets (shell structure, frame, 
vehicle paintwork)

b. Alstom Proposal--Non-Domestic Rolling Stock Components

    Alstom is proposing to adapt the Avelia technology planned for 
deployment on the NEC for use in the Project by increasing power 
capacity and traction to achieve the speed and performance capability 
required by Brightline West, and consistent with that achieved with its 
TGV trains in Europe. Manufacturing would take place at its existing 
facility in Hornell, New York, where all 10 trainsets would be built. 
For this procurement, the following components would not be produced in 
the United States:

 Car Shells (shell structure, frame, vehicle paintwork)
 Brake Control Units

c. Non-Domestic Infrastructure Components

    Brightline West notes that the Project would also require the use 
of specialty high-speed rail turnouts to allow trains to smoothly 
diverge to a passing siding, which plays a key role in safety and 
stability of train operations. In addition, the Project would require 
fire alarm panels and devices for use in stations, garages, and 
maintenance facilities. Brightline West has researched known suppliers 
and was not able to identify a domestic manufacturer for the following 
components:

 Eurobalises and Euroloops \5\
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    \5\ Eurobalise and euroloops are components installed between 
the rails of a railway that are part of the European train control 
system used by Siemens. These components store infrastructure data 
(e.g., position reference, speed limits, line gradient, works on the 
line, etc) and can send this information to the train.
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 Counting Heads and Axle Counter Sensors
 Truck Press (test stand)
 Turnout Systems including Derailers
 Fire Alarm Systems

VI. Applicant's Request for Waiver

    In their request for a waiver, NVDOT and Brightline West indicated 
that they believe a waiver is justified because no manufacturers exist 
in the United States that can produce the components described above, 
and that the use of these non-domestic components is necessary to 
ensure the safety and reliability of the high-speed rail system.

[[Page 89017]]

    NVDOT's and Brightline West's DSWP further explains that over 95 
percent of the total direct dollar expenditures for the Project would 
be spent on domestically sourced products and labor, including 100 
percent of the civil infrastructure costs. In addition, the Project is 
expected to support approximately 35,000 domestic jobs across the 
construction period and includes a project labor agreement (PLA). The 
operator has reached an agreement with rail labor which may result in 
ongoing operations and maintenance work being performed by union 
labor.\6\ The DSWP further explains efforts Brightline West would take 
to facilitate, where feasible, a ramp up in domestic production 
capabilities for the materials that are not currently produced in the 
United States on future high-speed rail projects in the United States.
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    \6\ In March 2023, thirteen rail unions representing more than 
160,000 workers signed a Memorandum of Understanding with Brightline 
West, establishing a commitment for the use of highly skilled union 
labor required to operate and maintain the System.
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    In the absence of a waiver, NVDOT and Brightline West argue that 
the Project could not be delivered within the planned schedule and 
budget because there is no domestic supplier for the components listed 
above. To ensure safety of the system, Brightline West expects to 
conform with FRA's Passenger Equipment Safety Standards governing Tier 
III equipment,\7\ which allows for service-proven high-speed rail 
technologies from around the world (in this case Europe) to be 
introduced to the United States with minimal modification.
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    \7\ See 49 CFR part 238.
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    For example, the high-speed rolling stock aluminum car shells are 
critical to the achievement of high speeds, due to aluminum's strength 
and light weight, and it has taken decades of development in technology 
by highly specialized experts that can shape, mold, and weld these car 
shells to the required safety and quality standards, including 
crashworthiness. There is currently no available aluminum car shell 
manufacturer in the United States, and it would take years to establish 
a domestic, quality-controlled manufacturing capability. The relatively 
small size of the Project's order (ten trainsets) is also not 
considered by the applicant to be sufficient to justify the significant 
capital investments required to initiate development of domestic 
production capacity for those products.
    In its request for a waiver, NVDOT and Brightline West explain how 
they conducted due diligence and performed thorough market research to 
adequately consider qualifying alternate items, products, or materials. 
Brightline West engaged with both Alstom and Siemens to determine the 
systems that could be manufactured domestically. These efforts included 
considering options for the establishment of either temporary or 
permanent manufacturing facilities, alternative manufacturing 
processes, and system design. In addition, Brightline West conducted 
market research to identify a domestic supplier for high-speed turnout 
and fire alarm components. However, Brightline West was unable to 
identify a domestic supplier for the rolling stock, signal systems, 
turnout, and fire alarm components.

VII. Proposed Waiver

    Based on its review of the waiver request and DSWP, FRA proposes to 
waive its Buy America requirements for the following components for the 
Project:
     The infrastructure components listed above in Section 
V(c); and the rolling stock components listed in either:
    [cir] Section V(a), if Siemens is selected as the preferred 
supplier; or
    [cir] Section V(b), if Alstom is selected as the preferred 
supplier.
    The proposed waiver would apply only to components listed above for 
use in the Project, as described in the grant agreement between FRA and 
NVDOT. FRA is not proposing to waive any requirements under BABA, as 
the proposed waiver does not apply to any construction materials used 
in the Project. The proposed waiver would not apply to other FRA 
grantees or to other grants that might be made to NVDOT or Brightline 
West for other projects (including any future phases related to the 
Project).

VIII. Request for Comment

    FRA will consider comments received during the comment period, 
consistent with BABA and 2 CFR 184.7. FRA may consider comments 
received after this period to the extent practicable. Consistent with 
49 U.S.C. 22905(a)(4), if FRA determines it is necessary to waive its 
Buy America requirements, FRA will publish its decision in the Federal 
Register and provide an opportunity for public comment on such finding 
for a reasonable period of time not to exceed 15 days. After such 
period, FRA's decision will be effective.

    Issued in Washington, DC.
Amitabha Bose,
Administrator.
[FR Doc. 2023-28424 Filed 12-22-23; 8:45 am]
BILLING CODE 4910-06-P
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