Notice of Nonavailability Waiver of Buy America Requirements for the Nevada Department of Transportation To Purchase Certain High-Speed Rail Components, 45934-45938 [2024-11467]

Download as PDF 45934 Federal Register / Vol. 89, No. 102 / Friday, May 24, 2024 / Notices ACTION: Notice of Advanced Aviation Advisory Committee (AAAC) meeting. the ADDRESSES section at least 5 days in advance of the meeting. This notice announces multiple meetings of the AAAC. DATES: The meeting will be held on June 11, 2024, and October 9, 2024, between the hours of 1:00 p.m. and 4:30 p.m. Eastern Time. Requests for accommodations for a disability must be received at least one week in advance of the meeting. Requests to submit written materials to be reviewed during the meeting must be received at least one week in advance of the meeting. ADDRESSES: The meetings will be held at the FAA Headquarters, 800 Independence Avenue SW, Washington, DC 20591. In-person attendance is limited to Advanced Aviation Advisory Committee members and selected FAA support staff. 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Members of the public who wish to observe the virtual meetings can access the livestream on the following FAA social media platform on the day of the event: https:// www.youtube.com/FAAnews. The U.S. Department of Transportation is committed to providing equal access to this meeting for all participants. If you need alternative formats or services because of a disability, such as sign language, interpretation, or other ancillary aids, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The FAA is not accepting oral presentations at these meetings due to time constraints. Written statements submitted by the deadline will be provided to the AAAC members before the meetings. Any member of the public may submit a written statement to the committee at any time. SUMMARY: ddrumheller on DSK120RN23PROD with NOTICES1 I. Background The AAAC was created under the Federal Advisory Committee Act (FACA), as amended, Public Law 92– 463, 5 U.S.C. ch. 10, to provide the FAA with advice on key drone and advanced air mobility (AAM) integration issues by helping to identify challenges and prioritize improvements. II. Agenda At the meeting, the agenda will cover the following topics: • Official Statement of the Designated Federal Officer • Approval of the Agenda and Minutes • Opening Remarks • FAA Update • Industry-Led Technical Topics • New Business/Agenda Topics • Closing Remarks • Adjourn Additional details will be posted on the AAAC internet website address listed in VerDate Sep<11>2014 17:40 May 23, 2024 Jkt 262001 Issued in Washington, DC. Sherita L. Jones, Acting Chief of Staff, UAS Integration Office, Federal Aviation Administration. [FR Doc. 2024–11440 Filed 5–23–24; 8:45 am] BILLING CODE 4910–13–P requirements, which require 100 percent of the manufactured products, 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 all construction materials used in the FRAfunded project to be produced in the United States. FRA is not waiving the applicable BABA requirements for construction materials, and therefore this waiver does not apply to the construction materials used in the Project. Brightline West, the project sponsor, has selected Siemens as its preferred rolling stock vendor, and requested that FRA proceed with finalizing the Buy America waiver request for the Siemens trains and other components as included in the previously submitted documentation. Therefore, FRA is waiving its requirements for the first two Siemens trainsets, car shells, signal systems, high-speed rail turnout, and fire alarm systems based on the domestic nonavailability of these components, as described in the proposed waiver. NDOT and Brightline West estimate that more than 95 percent of the total direct dollar expenditures for the Project will be spent on domestically sourced products and labor, including 100 percent of the civil infrastructure costs. DATES: DEPARTMENT OF TRANSPORTATION Federal Railroad Administration [Docket No. FRA–2023–0099] Notice of 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. AGENCY: The Federal Railroad Administration (FRA) is issuing a waiver of its Buy America requirements to the Nevada Department of Transportation (NDOT) for high-speed rail components that are not produced in the United States for use in the Brightline West High-Speed Intercity Passenger Rail System 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: FRA’s statutory SUMMARY: PO 00000 Frm 00116 Fmt 4703 Sfmt 4703 This waiver is effective May 29, 2024. 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. ADDRESSES: 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, AttorneyAdviser, Office of the Chief Counsel, FRA, telephone: (202) 763–3230, email: Faris.Mohammed@dot.gov. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: E:\FR\FM\24MYN1.SGM 24MYN1 Federal Register / Vol. 89, No. 102 / Friday, May 24, 2024 / Notices ddrumheller on DSK120RN23PROD with NOTICES1 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 (NEC) for Fiscal Year 2022. The FSP Program provides a federal funding opportunity to improve American passenger rail assets to expand or establish new intercity passenger rail service, including privately operated intercity passenger rail service if an eligible applicant is involved, reduce the state of good repair backlog, improve performance, and enhance rail safety. 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 NDOT submitted an application for FSP Program funding that expressed NDOT’s 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 NDOT, 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, NDOT 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 Brightline West’s 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). 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. VerDate Sep<11>2014 17:40 May 23, 2024 Jkt 262001 market research and consideration of qualifying alternate items, products, or materials. On December 8, 2023, FRA selected the Project to receive up to $3,000,000,000 in funding under the FSP Program. On December 26, 2023, FRA published a proposed waiver for the Project based on the domestic nonavailability of certain components, which was made available with a 30-day public comment period. FRA received 619 unique comments, which are discussed below. In addition, FRA consulted with the National Institute of Standards and Technology Manufacturing Extension Partnership (NIST–MEP) through its supplier scouting program to research whether any domestic manufacturers produce the identified components. This notice summarizes FRA’s Buy America requirements, NDOT and Brightline West’s request for a waiver, discussion of public comments received on FRA’s proposed waiver, a summary of consultation with NIST–MEP, and FRA’s final waiver. 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: (A) FRA’s statutory requirements for steel, iron, and manufactured goods at 49 U.S.C. 22905(a); and (B) requirements under the BABA and 2 CFR 184.6 for construction materials. This means that FRA can fund a project only if the steel, iron, and manufactured goods used in the project are produced in the United States. 49 U.S.C. 22905(a). In addition, FRA-funded projects must also comply with the relevant provisions of BABA, including the requirement that all construction materials used in the project must also be produced in the United States. Public Law 117–58, 70914(a); 2 CFR 184.6. FRA strictly enforces compliance with its Buy America requirements to ensure that FRA-funded projects maximize the use of materials produced in the United States. FRA expects recipients to work with suppliers to conduct thorough market research and adequately consider, where appropriate, qualifying alternate items, products, or materials. Compliance with FRA’s Buy America requirement supports domestic industry and good-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) PO 00000 Frm 00117 Fmt 4703 Sfmt 4703 45935 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: (A) applying the Buy America requirements would be inconsistent with the public interest; (B) 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; (C) rolling stock or power train equipment cannot be bought and delivered in the United States within a reasonable time; or (D) 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, Sec.70914(b) (prescribing similar, but not identical, statutory conditions for waivers); and 2 CFR 184.7 (doing the same). IV. Summary of the Proposed Waiver On December 26, 2023, FRA issued a Notice of Proposed Nonavailability Waiver of Buy America Requirements for NDOT to Purchase Certain HighSpeed Rail Components, at 88 FR 89015. At the time of the proposed waiver, Brightline West had not selected its preferred vender for rolling stock. Therefore, FRA included components from the two proposals that Brightline West received from Siemens and Alstom in the proposed waiver. In the proposed waiver, for the Siemens proposal, FRA concluded that the following components were not available in the United States: • First Two Complete Trainsets; and • Car Shells for All 10 Trainsets (shell structure, frame, vehicle paintwork). For the Alstom proposal, FRA concluded the following components were not available in the United States: • Car Shells (shell structure, frame, vehicle paintwork); and • Brake Control Units.4 In addition, based on information provided by Brightline West, FRA concluded that the following components were not available in the United States regardless of the selected rolling stock vendor: • Eurobalises and Euroloops; • Counting Heads and Axle Counter Sensors; 4 After publication of the proposed waiver, Alstom commented on the proposed waiver stating that it would be able to produce the brake control units in the United States. Comment letter from Alstom (FRA–2023–0099–0026), dated January 24, 2024. As such, FRA would not have included these components in the final waiver if Brightline West had selected Alstom. E:\FR\FM\24MYN1.SGM 24MYN1 45936 Federal Register / Vol. 89, No. 102 / Friday, May 24, 2024 / Notices • Truck Press (test stand); • Turnout Systems including Derailers; and • Fire Alarm Systems. V. Summary of Changes in the Final Waiver FRA is not making significant changes from the proposed waiver but notes that the final waiver reflects the needs for the project given Brightline West’s decision to select Siemens as its preferred rolling stock vendor. The project sponsor notified FRA of this selection and requested to finalize the Buy America waiver for the Siemens trains and components as included in the previously submitted documentation. As this is a projectspecific waiver, FRA is therefore publishing a final waiver for the vendor selected to deliver rolling stock and other components for the Brightline West project. However, FRA notes that the Alstom proposal also meets the statutory criteria for a waiver based on domestic nonavailability. Neither vendor would be capable of delivering the rolling stock for the FRA-funded project without a waiver based on domestic nonavailability. ddrumheller on DSK120RN23PROD with NOTICES1 VI. Discussion of Public Comments Comments on the waiver were due January 25, 2024. As of January 29, 2024, FRA received a total of 619 unique comments on the proposed waiver, with 104 of those comments being received after the end of the comment period. Comments submitted after January 25 were received late but are discussed below. Due to the volume of comments, FRA did not consider comments received after January 30, 2024. FRA received 567 comments that generally supported the proposed waiver, and 52 comments that generally opposed the proposed waiver. The waiver facilitated a broad range of interest and input from the public and other stakeholders, and FRA greatly appreciates the robust feedback from members of the public. This section discusses the general themes raised in the comments. The comments are available on the docket, at regulations.gov, Docket (FRA–2023– 0099). A. Domestic Availability of Components, Alternate Products, and Domestic Capacity Three commenters (the Aluminum Extruders Council, ANTA Electric, and Westinghouse Air Brake Technologies Corporation (Wabtec)) stated that specific components in the proposed waiver could be manufactured domestically. In addition, 12 VerDate Sep<11>2014 17:40 May 23, 2024 Jkt 262001 commenters (members of the U.S. House of Representatives; 5 New York State Assembly members; 6 New York State Senators; 7 Mayor John J. Buckley, City of Hornell, NY; Robert Duffy of the Greater Rochester Chamber of Commerce; the International Association of Machinists and Aerospace Workers; and the Steuben County Industrial Development Agency) opposed the proposed waiver, citing to the domestic production capabilities in New York, specifically Alstom’s existing manufacturing facilities that have produced the Acela trainsets used by Amtrak and a new facility in Hornell, NY that will produce new streetcars for the Southeastern Pennsylvania Transportation Authority. FRA Response: FRA appreciates these comments and consulted with Brightline West to ensure that alternate products were considered in Brightline West’s domestic sourcing analysis and market research. FRA confirmed that Brightline West engaged with Wabtec and ANTA Electric and determined the components described in the comment letters did not meet Project requirements. FRA notes that Wabtec identified itself as a domestic supplier of the Interoperable Electronic Train Management System (I–ETMS), a Positive Train Control (PTC) system certified and approved by FRA for operation on all Class I railroad required track segments and many passenger railroad operations. I–ETMS has been successfully deployed in the United States and is approved for speeds up to 125 mph. Brightline West proposes to use the European Rail Traffic Management System (ERTMS), which is service proven in Europe at speeds in excess of 125 mph under a different regulatory system from that in the United States. Brightline West selected ERTMS because it is service proven at higher speeds in Europe, and Brightline West states that ERTMS is designed to perform the same functions required for operation in the United States.8 Since 5 See Comment Letter (FRA–2023–0099–0062) signed jointly by U.S. Representatives: Nicholas Langworthy [NY–23], Anthony D’Esposito [NY–04], Nicole Malliotakis [NY–11], Dan Meuser [PA–09], Marcus Molinaro [NY–19], Joseph Morelle [NY–25], and Elise Stefanik [NY–21]. 6 See Comment Letters from New York Assemblymembers: Billy Jones (FRA–2023–0099– 0020), William Magnarelli (FRA–2023–0099–0018), and Philip Palmesano (FRA–2023–0099–0009). 7 See Comment Letters from New York Senators: Jeremy Cooney (FRA–2023–0099–0015), Tim Kennedy (FRA–2023–0099–0011), Thomas O’Mara (FRA–2023–0099–0016), and Daniel Stec (FRA– 2023–0099–0010). 8 ERTMS has not yet been tested, certified, and approved for operation in the United States. Design documentation, testing, and submission of a PTC Safety Plan and associated HSR–125 document will PO 00000 Frm 00118 Fmt 4703 Sfmt 4703 ERTMS uses Eurobalises and Euroloops, these components are required for the Project. Brightline West did not identify a domestic manufacturer that could produce Eurobalises and Euroloops. As a result, FRA concluded that these components are not produced in the United States. Similarly, FRA notes that ANTA Electric identified itself as a domestic supplier of fire suppressions systems, specifically the assembly of electronic components. However, this is different from the fire alarm system needed for the Project. In addition, FRA did not identify any domestic location that can produce aluminum car body shells that meet the safety standards required for high-speed passenger rail operations. Both Siemens and Alstom sought domestic facilities for the car body shells through NIST– MEP’s supplier scouting program but did not locate any domestic sources. Furthermore, FRA recognizes that Alstom’s facilities in New York are capable of producing domestic rolling stock and trainset components for conventional rail and transit systems. However, there are currently no domestic manufacturers of high-speed trainsets (i.e., trainsets that are service proven at speeds in excess of 125 mph). Although Alstom does not currently manufacture high-speed rail trainsets at its facilities in New York, Alstom represented that it would be able to manufacture and deliver the trainsets within Brightline West’s project schedule. Alstom has represented that it would be able to manufacture its proposed Avelia trainsets, which it will adapt for high speed (i.e., in excess of 125 mph), in its New York facilities, with the exception of the car body shell, which is not available in the United States. Similarly, there is no domestic manufacturing capacity for Siemens’ Velaro NOVO Electric-Multiple-Unit (EMU) trainsets. Siemens has represented that it would be able to manufacture 8 of the 10 trainsets at a planned facility in the United States, but the first 2 trainsets would need to be manufactured in Germany to ensure quality control, as well as be tested and commissioned in Germany. As more high-speed rail technology is deployed in the United States, FRA expects domestic capacity will ramp up to meet demand, similar to the way that be required to obtain PTC certification and approval to operate. The operational experience of ERTMS across the European high-speed rail network will provide operational safety and reliability data to support the PTC Safety Plan and HSR–125 document. E:\FR\FM\24MYN1.SGM 24MYN1 Federal Register / Vol. 89, No. 102 / Friday, May 24, 2024 / Notices ddrumheller on DSK120RN23PROD with NOTICES1 manufacturing facilities in New York have grown and developed.9 B. Importance of Buy America Requirements and Need for a Narrow Waiver Scope Three commenters, (Bradley Supply, Inc.; U.S. Senator Charles E. Schumer [D–NY]; and the Transportation Trades Department, AFL–CIO) emphasized the need to limit the issuance of Buy America waivers to situations in which domestic manufacturing does not currently exist, and to ensure a clear justification is provided. The commenters stated that limiting the use of the waivers and establishing clear justification for needing waivers helps reinforce the importance of Buy America requirements, including BABA. Finally, one of the commenters stated that Buy America requirements are important to small businesses and that issuing Buy America waivers undermines small business activities. FRA Response: FRA appreciates comments that address the importance of limiting waivers to only those situations in which domestic manufacturing does not currently exist. FRA notes that the proposed waiver does not waive the applicable BABA requirements and does not apply to construction materials used in the Project. In addition, FRA requested that high-speed rail project sponsors provide a domestic sourcing and workforce plan in waiver requests to ensure that FRA could tailor waivers to include only those components that are not produced in the United States. The proposed waiver reflects approximately five percent of the total direct expenditures for the Project and notably does not include any construction materials. The waiver is narrowly tailored to safetycritical, specialized high-speed rail components that are not produced in the United States, as established through Brightline West’s market research, FRA’s expertise in high-speed rail, supplier scouting through NIST– MEP, and robust public engagement. In addition, the waiver applies only to the Project and does not apply to other projects or project sponsors. FRA received several comments related to the Siemens proposal, specifically regarding the first two trainsets that would be manufactured in Germany. Twenty-six commenters 10 9 See i.e., Comment letter (FRA–2023–0099–0013) from Mayor John J. Buckley, City of Hornell (explaining how increased demand for rolling stock has led to job creation and growth in the city). 10 Acro Industries, Inc.; Baker Bellfield; Bentech, Div. PPBCo; Clerprem USA Corp.; EuropTec, USA, LLC; Flinchbaugh Engineering, Inc.; GST Manufacturing; HOPPECKE Batteries, Inc.; Jarmu VerDate Sep<11>2014 17:40 May 23, 2024 Jkt 262001 supported the proposed components waiver and manufacturing the first two trainsets in Germany. Generally, commenters stated that the development of the first two trainsets abroad would ensure that the technology is transferred in a safe and efficient manner while also allowing for the domestic ramp-up to be established for the remaining trainsets. Three commenters (Alstom; LB Steel; and Transitair Systems, LLC) supported the waiver but opposed Siemens’ proposal to manufacture the first two trainsets in Germany. The commenters stated that the manufacturing of the first two trainsets overseas would not follow Buy America requirements as there is domestic manufacturing capability for high-speed trainsets. Furthermore, the commenters stated that the issuance of a partial waiver, when domestic manufacturing of those components is available, can undermine domestic investment and create unfair advantages to those entities that receive such waivers. One commenter (Alliance for American Manufacturing) opposed the waiver, including Siemens’ proposal to manufacture the first two trainsets overseas. The commenter urged FRA and NDOT to consider whether the Siemens proposal could be modified to align with the Alstom proposal and specifically require that the first two Siemens trainsets also be manufactured domestically. Furthermore, the commenter encouraged the development of consultation processes that can identify potential domestic manufacturing and could help facilitate the domestic manufacturing ramp up, such as with the NIST–MEP. FRA Response: FRA appreciates these comments and clarifies that the two proposals from Siemens and Alstom, as described in the proposed waiver, are for two distinct trainset designs and technology. Siemens proposed to introduce the next generation Velaro NOVO EMU for the Project. Alstom proposed 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, which would be consistent with performance achieved by Alstom’s TGV trains in Europe. As these trainsets involve Zrt.; Knorr-Bremse Espana, S.A.U.; Knorr-Bremse/ EVAC GmbH; Mannington Commercial; Mid-States Aluminum Corp.; Milwaukee Composites, Inc.; Siemens Energy, Inc.; Siemens Mobility; SKF USA, Inc.; Stahl Bahnkuchen Technik GmbH; Teknoware; Televic US, Inc., The Timken Company; Trelleborg Industrial Products USA, Inc.; UKM Transit Products; Ultimate Europe Transportation Equipment GmbH; United Mechanical and Metal Fabricators, Inc.; and UTCRAS. PO 00000 Frm 00119 Fmt 4703 Sfmt 4703 45937 different technologies, the domestic availability of trainset components varies by technology. Amtrak and Alstom received Buy America waivers in 2014 and 2015 for final assembly of two prototype Avelia Liberty trainsets and eight components for use on the Northeast Corridor. Since that time, Alstom has established a robust domestic manufacturing base for its Avelia Liberty trainsets. Alstom’s facilities in New York have capacity to manufacture the Avelia Liberty trainsets in the United States. In contrast, Siemens does not currently have a domestic facility equipped to manufacture the Siemens Velaro NOVO EMU trainsets. As such, the first two Velaro NOVO EMU trainsets would have to be manufactured in Germany. High-speed rail trainsets are highly specialized and require highly skilled labor and specific equipment, manufacturing, testing, and commissioning facilities to ensure safe and efficient operations. As more highspeed rail technology is deployed in the United States, FRA expects domestic capacity will ramp up to meet demand, similar to the way that manufacturing facilities in New York have grown and developed. FRA has concluded that both proposals meet the criteria for a waiver of FRA’s Buy America requirements based on domestic nonavailability, and limiting the Siemens proposal to only the first two trainsets is consistent with the BidenHarris Administration’s efforts to maximize the use of available domestic content and build capacity for future demand. See 49 U.S.C. 22905(a)(2)(B). C. Impact of the Waiver on Domestic Jobs Five commenters (Associated General Contractors of America, Brotherhood of Railroad Signalmen, High Speed Rail Alliance, Rail Passengers Association, and United Steelworkers) favored the issuance of the waiver, stating that the Project will create domestic jobs and facilitate the domestic market for the safety-critical high-speed rail components that are not currently manufactured domestically. Furthermore, the commenters generally stated that the proposed waiver and completion of the Project would facilitate increased demand for the highspeed rail technology, which could result in increased domestic manufacturing capacity to meet the demand for high-speed rail components. FRA Response: FRA appreciates these comments. The creation of good-paying jobs is a priority for FRA, the U.S. Department of Transportation, and the Biden-Harris Administration. In the E:\FR\FM\24MYN1.SGM 24MYN1 45938 Federal Register / Vol. 89, No. 102 / Friday, May 24, 2024 / Notices proposed waiver, FRA explained that the Project is expected to support approximately 35,000 domestic jobs across the construction period and includes a project labor agreement. As noted in the proposed waiver, Brightline West has reached an agreement with rail labor which may result in ongoing operations and maintenance work being performed by union labor.11 D. Comments Generally Supporting or Opposing the Proposed Waiver FRA received 527 comments from the public generally in favor of the issuance of the waiver. Additionally, several commenters noted that the completion of a high-speed rail project could increase domestic manufacturing and help reduce the need for waivers in the future. FRA received 29 comments from the public generally opposing the proposed waiver and emphasizing the need to develop domestic manufacturing in the high-speed rail industry. FRA Response: FRA appreciates these comments and expects that the successful deployment of high-speed rail technology in the United States will facilitate and encourage domestic manufacturing capacity to meet increased demand. FRA further clarifies that the proposed waiver was narrowly tailored and limited to include only those components that are not produced in the United States, and the waiver is limited only to the Project and does not apply to other projects or project sponsors. VIII. Final Waiver Based on its review of the waiver request and DSWP, and in consideration of comments received on the proposed waiver, FRA is waiving its Buy America requirements for the following components: • First Two Complete Trainsets; and • Car Shells for All 10 Trainsets (shell structure, frame, vehicle paintwork). • Eurobalises and Euroloops; • Counting Heads and Axle Counter Sensors; • Truck Press (test stand); • Turnout Systems including Derailers; and • Fire Alarm Systems. The waiver applies only to components listed above for use in the Project. However, FRA concludes that Alstom’s proposal would have also met the criteria for a waiver if Brightline West had selected Alstom. FRA is not waiving any applicable requirements under BABA, and the waiver does not apply to any construction materials used in the Project. The waiver does not apply to other FRA recipients or to other grants that might be made to NDOT or Brightline West for other projects (including any future phases related to the Project). This waiver will expire upon the end of the period of performance and closeout of the grant agreement for the Project. Issued in Washington, DC. Amitabha Bose, Administrator. [FR Doc. 2024–11467 Filed 5–23–24; 8:45 am] BILLING CODE 4910–06–P ddrumheller on DSK120RN23PROD with NOTICES1 VII. NIST–MEP Supplier Scouting Results Consistent with section 70916(c) of BABA, FRA requested that the project sponsor, Brightline West, engage with the NIST–MEP through the NIST–MEP’s supplier scouting program. The NIST– MEP supplier scouting opportunity allows agencies, manufacturers, and project sponsors to identify potential manufacturers from across the Nation to assist in market research on domestic availability. Brightline West was not able to identify a domestic manufacturer for the components listed in the proposed waiver through the NIST–MEP supplier scouting program. This further supports FRA’s conclusion that the components listed in the proposed waiver are not produced in the United States. 11 In March 2023, 13 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. VerDate Sep<11>2014 17:40 May 23, 2024 Jkt 262001 DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency Agency Information Collection Activities: Information Collection Renewal; Comment Request; Fair Credit Reporting: Affiliate Marketing Office of the Comptroller of the Currency (OCC), Treasury. ACTION: Notice and request for comment. AGENCY: The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites comment on a continuing information collection, as required by the Paperwork Reduction Act of 1995 (PRA). In accordance with the requirements of the PRA, the OCC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently SUMMARY: PO 00000 Frm 00120 Fmt 4703 Sfmt 4703 valid Office of Management and Budget (OMB) control number. The OCC is soliciting comment concerning the renewal of its information collection titled, ‘‘Fair Credit Reporting: Affiliate Marketing.’’ Comments must be received by July 23, 2024. ADDRESSES: Commenters are encouraged to submit comments by email, if possible. You may submit comments by any of the following methods: • Email: prainfo@occ.treas.gov. • Mail: Chief Counsel’s Office, Attention: Comment Processing, Office of the Comptroller of the Currency, Attention: 1557–0230, 400 7th Street SW, Suite 3E–218, Washington, DC 20219. • Hand Delivery/Courier: 400 7th Street SW, Suite 3E–218, Washington, DC 20219. • Fax: (571) 293–4835. Instructions: You must include ‘‘OCC’’ as the agency name and ‘‘1557– 0230’’ in your comment. In general, the OCC will publish comments on www.reginfo.gov without change, including any business or personal information provided, such as name and address information, email addresses, or phone numbers. Comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. Following the close of this notice’s 60-day comment period, the OCC will publish a second notice with a 30-day comment period. You may review comments and other related materials that pertain to this information collection beginning on the date of publication of the second notice for this collection by the method set forth in the next bullet. • Viewing Comments Electronically: Go to www.reginfo.gov. Hover over the ‘‘Information Collection Review’’ tab and click on ‘‘Information Collection Review’’ from the drop-down menu. From the ‘‘Currently under Review’’ drop-down menu, select ‘‘Department of Treasury’’ and then click ‘‘submit.’’ This information collection can be located by searching OMB control number ‘‘1557– 0230’’ or ‘‘Fair Credit Reporting: Affiliate Marketing.’’ Upon finding the appropriate information collection, click on the related ‘‘ICR Reference Number.’’ On the next screen, select ‘‘View Supporting Statement and Other Documents’’ and then click on the link DATES: E:\FR\FM\24MYN1.SGM 24MYN1

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[Federal Register Volume 89, Number 102 (Friday, May 24, 2024)]
[Notices]
[Pages 45934-45938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11467]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket No. FRA-2023-0099]


Notice of 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.

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SUMMARY: The Federal Railroad Administration (FRA) is issuing a waiver 
of its Buy America requirements to the Nevada Department of 
Transportation (NDOT) for high-speed rail components that are not 
produced in the United States for use in the Brightline West High-Speed 
Intercity Passenger Rail System 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: FRA's statutory 
requirements, which require 100 percent of the manufactured products, 
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 all construction materials used in the FRA-funded project to 
be produced in the United States. FRA is not waiving the applicable 
BABA requirements for construction materials, and therefore this waiver 
does not apply to the construction materials used in the Project. 
Brightline West, the project sponsor, has selected Siemens as its 
preferred rolling stock vendor, and requested that FRA proceed with 
finalizing the Buy America waiver request for the Siemens trains and 
other components as included in the previously submitted documentation. 
Therefore, FRA is waiving its requirements for the first two Siemens 
trainsets, car shells, signal systems, high-speed rail turnout, and 
fire alarm systems based on the domestic nonavailability of these 
components, as described in the proposed waiver. NDOT and Brightline 
West estimate that more than 95 percent of the total direct dollar 
expenditures for the Project will be spent on domestically sourced 
products and labor, including 100 percent of the civil infrastructure 
costs.

DATES: This waiver is effective May 29, 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-Adviser, Office of the Chief Counsel, FRA, 
telephone: (202) 763-3230, email: [email protected].

SUPPLEMENTARY INFORMATION:

[[Page 45935]]

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 (NEC) for Fiscal Year 2022. The FSP Program provides 
a federal funding opportunity to improve American passenger rail assets 
to expand or establish new intercity passenger rail service, including 
privately operated intercity passenger rail service if an eligible 
applicant is involved, reduce the state of good repair backlog, improve 
performance, and enhance rail safety. 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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    NDOT submitted an application for FSP Program funding that 
expressed NDOT's 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 NDOT, 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, NDOT 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 Brightline West's market 
research and consideration of qualifying alternate items, products, or 
materials.
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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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    On December 8, 2023, FRA selected the Project to receive up to 
$3,000,000,000 in funding under the FSP Program. On December 26, 2023, 
FRA published a proposed waiver for the Project based on the domestic 
nonavailability of certain components, which was made available with a 
30-day public comment period. FRA received 619 unique comments, which 
are discussed below. In addition, FRA consulted with the National 
Institute of Standards and Technology Manufacturing Extension 
Partnership (NIST-MEP) through its supplier scouting program to 
research whether any domestic manufacturers produce the identified 
components.
    This notice summarizes FRA's Buy America requirements, NDOT and 
Brightline West's request for a waiver, discussion of public comments 
received on FRA's proposed waiver, a summary of consultation with NIST-
MEP, and FRA's final waiver.

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: (A) FRA's statutory requirements for steel, iron, and 
manufactured goods at 49 U.S.C. 22905(a); and (B) requirements under 
the BABA and 2 CFR 184.6 for construction materials. This means that 
FRA can fund a project only if the steel, iron, and manufactured goods 
used in the project are produced in the United States. 49 U.S.C. 
22905(a). In addition, FRA-funded projects must also comply with the 
relevant provisions of BABA, including the requirement that all 
construction materials used in the project must also be produced in the 
United States. Public Law 117-58, 70914(a); 2 CFR 184.6.
    FRA strictly enforces compliance with its Buy America requirements 
to ensure that FRA-funded projects maximize the use of materials 
produced in the United States. FRA expects recipients to work with 
suppliers to conduct thorough market research and adequately consider, 
where appropriate, qualifying alternate items, products, or materials. 
Compliance with FRA's Buy America requirement supports domestic 
industry and good-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: 
(A) applying the Buy America requirements would be inconsistent with 
the public interest; (B) 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; (C) rolling stock or power 
train equipment cannot be bought and delivered in the United States 
within a reasonable time; or (D) 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, Sec.70914(b) 
(prescribing similar, but not identical, statutory conditions for 
waivers); and 2 CFR 184.7 (doing the same).

IV. Summary of the Proposed Waiver

    On December 26, 2023, FRA issued a Notice of Proposed 
Nonavailability Waiver of Buy America Requirements for NDOT to Purchase 
Certain High-Speed Rail Components, at 88 FR 89015. At the time of the 
proposed waiver, Brightline West had not selected its preferred vender 
for rolling stock. Therefore, FRA included components from the two 
proposals that Brightline West received from Siemens and Alstom in the 
proposed waiver.
    In the proposed waiver, for the Siemens proposal, FRA concluded 
that the following components were not available in the United States:
     First Two Complete Trainsets; and
     Car Shells for All 10 Trainsets (shell structure, frame, 
vehicle paintwork).
    For the Alstom proposal, FRA concluded the following components 
were not available in the United States:
     Car Shells (shell structure, frame, vehicle paintwork); 
and
     Brake Control Units.\4\
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    \4\ After publication of the proposed waiver, Alstom commented 
on the proposed waiver stating that it would be able to produce the 
brake control units in the United States. Comment letter from Alstom 
(FRA-2023-0099-0026), dated January 24, 2024. As such, FRA would not 
have included these components in the final waiver if Brightline 
West had selected Alstom.
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    In addition, based on information provided by Brightline West, FRA 
concluded that the following components were not available in the 
United States regardless of the selected rolling stock vendor:
     Eurobalises and Euroloops;
     Counting Heads and Axle Counter Sensors;

[[Page 45936]]

     Truck Press (test stand);
     Turnout Systems including Derailers; and
     Fire Alarm Systems.

V. Summary of Changes in the Final Waiver

    FRA is not making significant changes from the proposed waiver but 
notes that the final waiver reflects the needs for the project given 
Brightline West's decision to select Siemens as its preferred rolling 
stock vendor. The project sponsor notified FRA of this selection and 
requested to finalize the Buy America waiver for the Siemens trains and 
components as included in the previously submitted documentation. As 
this is a project-specific waiver, FRA is therefore publishing a final 
waiver for the vendor selected to deliver rolling stock and other 
components for the Brightline West project. However, FRA notes that the 
Alstom proposal also meets the statutory criteria for a waiver based on 
domestic nonavailability. Neither vendor would be capable of delivering 
the rolling stock for the FRA-funded project without a waiver based on 
domestic nonavailability.

VI. Discussion of Public Comments

    Comments on the waiver were due January 25, 2024. As of January 29, 
2024, FRA received a total of 619 unique comments on the proposed 
waiver, with 104 of those comments being received after the end of the 
comment period. Comments submitted after January 25 were received late 
but are discussed below. Due to the volume of comments, FRA did not 
consider comments received after January 30, 2024. FRA received 567 
comments that generally supported the proposed waiver, and 52 comments 
that generally opposed the proposed waiver. The waiver facilitated a 
broad range of interest and input from the public and other 
stakeholders, and FRA greatly appreciates the robust feedback from 
members of the public. This section discusses the general themes raised 
in the comments. The comments are available on the docket, at 
regulations.gov, Docket (FRA-2023-0099).

A. Domestic Availability of Components, Alternate Products, and 
Domestic Capacity

    Three commenters (the Aluminum Extruders Council, ANTA Electric, 
and Westinghouse Air Brake Technologies Corporation (Wabtec)) stated 
that specific components in the proposed waiver could be manufactured 
domestically. In addition, 12 commenters (members of the U.S. House of 
Representatives; \5\ New York State Assembly members; \6\ New York 
State Senators; \7\ Mayor John J. Buckley, City of Hornell, NY; Robert 
Duffy of the Greater Rochester Chamber of Commerce; the International 
Association of Machinists and Aerospace Workers; and the Steuben County 
Industrial Development Agency) opposed the proposed waiver, citing to 
the domestic production capabilities in New York, specifically Alstom's 
existing manufacturing facilities that have produced the Acela 
trainsets used by Amtrak and a new facility in Hornell, NY that will 
produce new streetcars for the Southeastern Pennsylvania Transportation 
Authority.
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    \5\ See Comment Letter (FRA-2023-0099-0062) signed jointly by 
U.S. Representatives: Nicholas Langworthy [NY-23], Anthony 
D'Esposito [NY-04], Nicole Malliotakis [NY-11], Dan Meuser [PA-09], 
Marcus Molinaro [NY-19], Joseph Morelle [NY-25], and Elise Stefanik 
[NY-21].
    \6\ See Comment Letters from New York Assemblymembers: Billy 
Jones (FRA-2023-0099-0020), William Magnarelli (FRA-2023-0099-0018), 
and Philip Palmesano (FRA-2023-0099-0009).
    \7\ See Comment Letters from New York Senators: Jeremy Cooney 
(FRA-2023-0099-0015), Tim Kennedy (FRA-2023-0099-0011), Thomas 
O'Mara (FRA-2023-0099-0016), and Daniel Stec (FRA-2023-0099-0010).
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    FRA Response: FRA appreciates these comments and consulted with 
Brightline West to ensure that alternate products were considered in 
Brightline West's domestic sourcing analysis and market research. FRA 
confirmed that Brightline West engaged with Wabtec and ANTA Electric 
and determined the components described in the comment letters did not 
meet Project requirements. FRA notes that Wabtec identified itself as a 
domestic supplier of the Interoperable Electronic Train Management 
System (I-ETMS), a Positive Train Control (PTC) system certified and 
approved by FRA for operation on all Class I railroad required track 
segments and many passenger railroad operations. I-ETMS has been 
successfully deployed in the United States and is approved for speeds 
up to 125 mph. Brightline West proposes to use the European Rail 
Traffic Management System (ERTMS), which is service proven in Europe at 
speeds in excess of 125 mph under a different regulatory system from 
that in the United States. Brightline West selected ERTMS because it is 
service proven at higher speeds in Europe, and Brightline West states 
that ERTMS is designed to perform the same functions required for 
operation in the United States.\8\ Since ERTMS uses Eurobalises and 
Euroloops, these components are required for the Project. Brightline 
West did not identify a domestic manufacturer that could produce 
Eurobalises and Euroloops. As a result, FRA concluded that these 
components are not produced in the United States. Similarly, FRA notes 
that ANTA Electric identified itself as a domestic supplier of fire 
suppressions systems, specifically the assembly of electronic 
components. However, this is different from the fire alarm system 
needed for the Project.
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    \8\ ERTMS has not yet been tested, certified, and approved for 
operation in the United States. Design documentation, testing, and 
submission of a PTC Safety Plan and associated HSR-125 document will 
be required to obtain PTC certification and approval to operate. The 
operational experience of ERTMS across the European high-speed rail 
network will provide operational safety and reliability data to 
support the PTC Safety Plan and HSR-125 document.
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    In addition, FRA did not identify any domestic location that can 
produce aluminum car body shells that meet the safety standards 
required for high-speed passenger rail operations. Both Siemens and 
Alstom sought domestic facilities for the car body shells through NIST-
MEP's supplier scouting program but did not locate any domestic 
sources.
    Furthermore, FRA recognizes that Alstom's facilities in New York 
are capable of producing domestic rolling stock and trainset components 
for conventional rail and transit systems. However, there are currently 
no domestic manufacturers of high-speed trainsets (i.e., trainsets that 
are service proven at speeds in excess of 125 mph). Although Alstom 
does not currently manufacture high-speed rail trainsets at its 
facilities in New York, Alstom represented that it would be able to 
manufacture and deliver the trainsets within Brightline West's project 
schedule. Alstom has represented that it would be able to manufacture 
its proposed Avelia trainsets, which it will adapt for high speed 
(i.e., in excess of 125 mph), in its New York facilities, with the 
exception of the car body shell, which is not available in the United 
States.
    Similarly, there is no domestic manufacturing capacity for Siemens' 
Velaro NOVO Electric-Multiple-Unit (EMU) trainsets. Siemens has 
represented that it would be able to manufacture 8 of the 10 trainsets 
at a planned facility in the United States, but the first 2 trainsets 
would need to be manufactured in Germany to ensure quality control, as 
well as be tested and commissioned in Germany. As more high-speed rail 
technology is deployed in the United States, FRA expects domestic 
capacity will ramp up to meet demand, similar to the way that

[[Page 45937]]

manufacturing facilities in New York have grown and developed.\9\
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    \9\ See i.e., Comment letter (FRA-2023-0099-0013) from Mayor 
John J. Buckley, City of Hornell (explaining how increased demand 
for rolling stock has led to job creation and growth in the city).
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B. Importance of Buy America Requirements and Need for a Narrow Waiver 
Scope

    Three commenters, (Bradley Supply, Inc.; U.S. Senator Charles E. 
Schumer [D-NY]; and the Transportation Trades Department, AFL-CIO) 
emphasized the need to limit the issuance of Buy America waivers to 
situations in which domestic manufacturing does not currently exist, 
and to ensure a clear justification is provided. The commenters stated 
that limiting the use of the waivers and establishing clear 
justification for needing waivers helps reinforce the importance of Buy 
America requirements, including BABA. Finally, one of the commenters 
stated that Buy America requirements are important to small businesses 
and that issuing Buy America waivers undermines small business 
activities.
    FRA Response: FRA appreciates comments that address the importance 
of limiting waivers to only those situations in which domestic 
manufacturing does not currently exist. FRA notes that the proposed 
waiver does not waive the applicable BABA requirements and does not 
apply to construction materials used in the Project. In addition, FRA 
requested that high-speed rail project sponsors provide a domestic 
sourcing and workforce plan in waiver requests to ensure that FRA could 
tailor waivers to include only those components that are not produced 
in the United States. The proposed waiver reflects approximately five 
percent of the total direct expenditures for the Project and notably 
does not include any construction materials. The waiver is narrowly 
tailored to safety-critical, specialized high-speed rail components 
that are not produced in the United States, as established through 
Brightline West's market research, FRA's expertise in high-speed rail, 
supplier scouting through NIST-MEP, and robust public engagement. In 
addition, the waiver applies only to the Project and does not apply to 
other projects or project sponsors.
    FRA received several comments related to the Siemens proposal, 
specifically regarding the first two trainsets that would be 
manufactured in Germany. Twenty-six commenters \10\ supported the 
proposed components waiver and manufacturing the first two trainsets in 
Germany. Generally, commenters stated that the development of the first 
two trainsets abroad would ensure that the technology is transferred in 
a safe and efficient manner while also allowing for the domestic ramp-
up to be established for the remaining trainsets.
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    \10\ Acro Industries, Inc.; Baker Bellfield; Bentech, Div. 
PPBCo; Clerprem USA Corp.; EuropTec, USA, LLC; Flinchbaugh 
Engineering, Inc.; GST Manufacturing; HOPPECKE Batteries, Inc.; 
Jarmu Zrt.; Knorr-Bremse Espana, S.A.U.; Knorr-Bremse/EVAC GmbH; 
Mannington Commercial; Mid-States Aluminum Corp.; Milwaukee 
Composites, Inc.; Siemens Energy, Inc.; Siemens Mobility; SKF USA, 
Inc.; Stahl Bahnkuchen Technik GmbH; Teknoware; Televic US, Inc., 
The Timken Company; Trelleborg Industrial Products USA, Inc.; UKM 
Transit Products; Ultimate Europe Transportation Equipment GmbH; 
United Mechanical and Metal Fabricators, Inc.; and UTCRAS.
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    Three commenters (Alstom; LB Steel; and Transitair Systems, LLC) 
supported the waiver but opposed Siemens' proposal to manufacture the 
first two trainsets in Germany. The commenters stated that the 
manufacturing of the first two trainsets overseas would not follow Buy 
America requirements as there is domestic manufacturing capability for 
high-speed trainsets. Furthermore, the commenters stated that the 
issuance of a partial waiver, when domestic manufacturing of those 
components is available, can undermine domestic investment and create 
unfair advantages to those entities that receive such waivers.
    One commenter (Alliance for American Manufacturing) opposed the 
waiver, including Siemens' proposal to manufacture the first two 
trainsets overseas. The commenter urged FRA and NDOT to consider 
whether the Siemens proposal could be modified to align with the Alstom 
proposal and specifically require that the first two Siemens trainsets 
also be manufactured domestically. Furthermore, the commenter 
encouraged the development of consultation processes that can identify 
potential domestic manufacturing and could help facilitate the domestic 
manufacturing ramp up, such as with the NIST-MEP.
    FRA Response: FRA appreciates these comments and clarifies that the 
two proposals from Siemens and Alstom, as described in the proposed 
waiver, are for two distinct trainset designs and technology. Siemens 
proposed to introduce the next generation Velaro NOVO EMU for the 
Project. Alstom proposed 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, which would be consistent with performance 
achieved by Alstom's TGV trains in Europe. As these trainsets involve 
different technologies, the domestic availability of trainset 
components varies by technology.
    Amtrak and Alstom received Buy America waivers in 2014 and 2015 for 
final assembly of two prototype Avelia Liberty trainsets and eight 
components for use on the Northeast Corridor. Since that time, Alstom 
has established a robust domestic manufacturing base for its Avelia 
Liberty trainsets. Alstom's facilities in New York have capacity to 
manufacture the Avelia Liberty trainsets in the United States. In 
contrast, Siemens does not currently have a domestic facility equipped 
to manufacture the Siemens Velaro NOVO EMU trainsets. As such, the 
first two Velaro NOVO EMU trainsets would have to be manufactured in 
Germany.
    High-speed rail trainsets are highly specialized and require highly 
skilled labor and specific equipment, manufacturing, testing, and 
commissioning facilities to ensure safe and efficient operations. As 
more high-speed rail technology is deployed in the United States, FRA 
expects domestic capacity will ramp up to meet demand, similar to the 
way that manufacturing facilities in New York have grown and developed. 
FRA has concluded that both proposals meet the criteria for a waiver of 
FRA's Buy America requirements based on domestic nonavailability, and 
limiting the Siemens proposal to only the first two trainsets is 
consistent with the Biden-Harris Administration's efforts to maximize 
the use of available domestic content and build capacity for future 
demand. See 49 U.S.C. 22905(a)(2)(B).

C. Impact of the Waiver on Domestic Jobs

    Five commenters (Associated General Contractors of America, 
Brotherhood of Railroad Signalmen, High Speed Rail Alliance, Rail 
Passengers Association, and United Steelworkers) favored the issuance 
of the waiver, stating that the Project will create domestic jobs and 
facilitate the domestic market for the safety-critical high-speed rail 
components that are not currently manufactured domestically. 
Furthermore, the commenters generally stated that the proposed waiver 
and completion of the Project would facilitate increased demand for the 
high-speed rail technology, which could result in increased domestic 
manufacturing capacity to meet the demand for high-speed rail 
components.
    FRA Response: FRA appreciates these comments. The creation of good-
paying jobs is a priority for FRA, the U.S. Department of 
Transportation, and the Biden-Harris Administration. In the

[[Page 45938]]

proposed waiver, FRA explained that the Project is expected to support 
approximately 35,000 domestic jobs across the construction period and 
includes a project labor agreement. As noted in the proposed waiver, 
Brightline West has reached an agreement with rail labor which may 
result in ongoing operations and maintenance work being performed by 
union labor.\11\
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    \11\ In March 2023, 13 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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D. Comments Generally Supporting or Opposing the Proposed Waiver

    FRA received 527 comments from the public generally in favor of the 
issuance of the waiver. Additionally, several commenters noted that the 
completion of a high-speed rail project could increase domestic 
manufacturing and help reduce the need for waivers in the future. FRA 
received 29 comments from the public generally opposing the proposed 
waiver and emphasizing the need to develop domestic manufacturing in 
the high-speed rail industry.
    FRA Response: FRA appreciates these comments and expects that the 
successful deployment of high-speed rail technology in the United 
States will facilitate and encourage domestic manufacturing capacity to 
meet increased demand. FRA further clarifies that the proposed waiver 
was narrowly tailored and limited to include only those components that 
are not produced in the United States, and the waiver is limited only 
to the Project and does not apply to other projects or project 
sponsors.

VII. NIST-MEP Supplier Scouting Results

    Consistent with section 70916(c) of BABA, FRA requested that the 
project sponsor, Brightline West, engage with the NIST-MEP through the 
NIST-MEP's supplier scouting program. The NIST-MEP supplier scouting 
opportunity allows agencies, manufacturers, and project sponsors to 
identify potential manufacturers from across the Nation to assist in 
market research on domestic availability. Brightline West was not able 
to identify a domestic manufacturer for the components listed in the 
proposed waiver through the NIST-MEP supplier scouting program. This 
further supports FRA's conclusion that the components listed in the 
proposed waiver are not produced in the United States.

VIII. Final Waiver

    Based on its review of the waiver request and DSWP, and in 
consideration of comments received on the proposed waiver, FRA is 
waiving its Buy America requirements for the following components:
     First Two Complete Trainsets; and
     Car Shells for All 10 Trainsets (shell structure, frame, 
vehicle paintwork).
     Eurobalises and Euroloops;
     Counting Heads and Axle Counter Sensors;
     Truck Press (test stand);
     Turnout Systems including Derailers; and
     Fire Alarm Systems.
    The waiver applies only to components listed above for use in the 
Project. However, FRA concludes that Alstom's proposal would have also 
met the criteria for a waiver if Brightline West had selected Alstom. 
FRA is not waiving any applicable requirements under BABA, and the 
waiver does not apply to any construction materials used in the 
Project. The waiver does not apply to other FRA recipients or to other 
grants that might be made to NDOT or Brightline West for other projects 
(including any future phases related to the Project). This waiver will 
expire upon the end of the period of performance and closeout of the 
grant agreement for the Project.

    Issued in Washington, DC.
Amitabha Bose,
Administrator.
[FR Doc. 2024-11467 Filed 5-23-24; 8:45 am]
BILLING CODE 4910-06-P
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