Notice of Proposed Nonavailability Waiver of Buy America Requirements for Certain High-Speed Rail Products for the California Inaugural High-Speed Rail Service Project, 77224-77227 [2024-21574]
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Federal Register / Vol. 89, No. 183 / Friday, September 20, 2024 / Notices
Program. Section 422 of that Act states
that FMCSA may not require the use of
inward facing cameras or require a
motor carrier to register an
apprenticeship program with the
Department of Labor as a condition for
participation in the SDAP program. As
such, the application and monthly
report forms were revised to remove
those two elements as mandatory
requirements, and this revision was
approved under the emergency review
request. However, the Agency will
continue to ask carriers whether they
use inward facing cameras and whether
they have a Registered Apprenticeship
program approval number and will give
carriers the option of providing that
information. With this request for
renewal of the approved ICR, FMCSA
does not expect to see any change in the
number of respondents, responses, or
the overall burden of this information
collection.
Public Comments Invited: You are
asked to comment on any aspect of this
information collection, including: (1)
whether the proposed collection is
necessary for the performance of
FMCSA’s functions; (2) the accuracy of
the estimated burden; (3) ways for
FMCSA to enhance the quality,
usefulness, and clarity of the collected
information; and (4) ways that the
burden could be minimized without
reducing the quality of the collected
information.
Issued under the authority of 49 CFR 1.87.
Thomas P. Keane,
Associate Administrator, Office of Research
and Registration.
[FR Doc. 2024–21519 Filed 9–19–24; 8:45 am]
BILLING CODE 4910–EX–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[Docket No. FMCSA–2023–0267]
RIN 2126–AB56
FMCSA Registration System
Modernization
Federal Motor Carrier Safety
Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of hybrid public meeting.
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AGENCY:
FMCSA announces a hybrid
(in-person and virtual) public meeting
to engage stakeholders, which includes
motor carriers, brokers, freight
forwarders, insurance companies,
financial institutions, process agents,
blanket companies, and transportation
service providers; to get their
SUMMARY:
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16:44 Sep 19, 2024
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perspective on improving the
registration experience with FMCSA.
This is the third iteration of the FMCSA
Registration Modernization Stakeholder
Day. The first meeting was held in
person at FMCSA on January 17, 2024,
and the second meeting was held
virtually on May 29, 2024.
DATES: This hybrid (in-person and
virtual) meeting will be held on October
21, 2024, from 1 to 4 p.m. EST. Parties
interested in attending either in-person
or virtually must register at the link
provided below by 11:59 p.m. EST, on
October 14, 2024.
ADDRESSES: The in-person meeting will
take place at DOT Headquarters, 1200
New Jersey Ave. SE, Washington, DC
20590.
FOR FURTHER INFORMATION CONTACT: Gio
Vizcardo, Knowledge Manager, Office of
Registration, FMCSA, 1200 New Jersey
Avenue SE, Washington, DC 20590–
0001; (202) 366–0356; mcrs-social@
dot.gov.
Services for individuals with
disabilities: For information on facilities
or services for individuals with
disabilities or to request special
assistance at the meeting, contact Gio
Vizcardo using one of the above means
by 11:59 p.m. EST, on September 21,
2024.
SUPPLEMENTARY INFORMATION:
Background
FMCSA is developing a new online
registration system, to improve the
transparency and efficiency of FMCSA’s
registration procedures as well as
implement statutory requirements
related to the registration program.
FMCSA seeks user perspectives on
improving the registration experience
when engaging with FMCSA’s
registration system. During this meeting,
FMCSA will invite attendees to
participate after the initial
presentations. FMCSA moderators will
facilitate discussions on what potential
users would like to see, as well as what
would not be helpful from a user
experience perspective.
Meeting Information
This meeting is intended for current
and potential users of a new online
registration system, including but not
limited to:
• Motor carriers;
• Brokers and freight forwarders;
• Insurance companies/financial
institutions and process agents/blanket
companies; and
• Transportation service providers.
Those interested in attending this
meeting must register at https://
www.fmcsa.dot.gov/registration/fmcsa-
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registration-modernization-stakeholderday-iii by 11:59 p.m. EST, on October
14, 2024. Please note that attendance
will be capped at the first 100 (for inperson attendees) and 500 (for virtual
attendees) registrants. In-person
attendees will have an opportunity to
conduct user-testing on portions of the
new registration system.
The full meeting agenda will be
available on the registration site in
advance of the meeting.
Vincent G. White,
Deputy Administrator.
[FR Doc. 2024–21518 Filed 9–19–24; 8:45 am]
BILLING CODE 4910–EX–P
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[Docket No. FRA–2024–0104]
Notice of Proposed Nonavailability
Waiver of Buy America Requirements
for Certain High-Speed Rail Products
for the California Inaugural High-Speed
Rail Service Project
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
California High-Speed Rail Authority
(the Authority) to use certain products
that are not produced in the United
States for use in the California Inaugural
High-Speed Rail Service Project
between Merced, California and
Bakersfield, California (Project). FRA is
funding the Project under the FederalState Partnership for Intercity Passenger
Rail Program (FSP Program); therefore,
FRA’s Buy America requirements apply
to the Project. FRA’s Buy America
requirements include both FRA’s
statutory requirements, which require
100 percent of the manufactured
products and steel and iron used in an
FRA-funded project to be produced in
the United States, and the Build
America, Buy America Act (BABA),
which requires that all construction
materials used in the FRA-funded
project be produced in the United
States. FRA is not proposing to waive
the applicable BABA requirements for
construction materials used in the
Project. The proposed waiver would
apply to the aluminum car shells, signal
systems, high-speed rail turnouts and
fire alarm systems based on the
domestic nonavailability of such
SUMMARY:
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products, as identified by the Authority.
The Authority estimates that over 98
percent of the total direct dollar
expenditures for the Project would be
spent on domestically sourced products
and labor, including 100 percent of the
civil infrastructure costs.
DATES: Comments must be received by
October 7, 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–2024–0104). Note
that all submissions received, including
any personal information provided, will
be posted without change and will be
available to the public on 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 Shreyas Bhatnagar, Regional
Supervisor, Office of Regional Outreach
& Project Delivery, Office of Railroad
Development, FRA, telephone: (202)
495–8630, email: Shreyas.Bhatnagar@
dot.gov or 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, Attorney-Adviser, Office of
the Chief Counsel, FRA, telephone:
(202) 763–3230, email:
Faris.Mohammed@dot.gov.
SUPPLEMENTARY INFORMATION:
I. Project History and Background
On December 7, 2022, FRA published
a Notice of Funding Opportunity
(NOFO) announcing application
requirements and procedures to obtain
grant funding under the FSP Program
for projects not located on the Northeast
Corridor for Fiscal Year 2022. The FSP
Program provides a Federal funding
opportunity to improve passenger rail
service. On February 3, 2023, FRA
published a notice adding funding and
extending the application period for the
FSP Program NOFO. On March 22,
2023, FRA published a notice (March
Notice) inviting high-speed rail project
sponsors to voluntarily submit, in
advance of being selected to receive
FRA funding, a domestic sourcing and
workforce plan (DSWP) to demonstrate
how the sponsor will maximize the use
of domestic goods, products and
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materials, consistent with FRA’s Buy
America requirements.1
The Authority applied for FSP
Program funding expressing its intent to
advance the California High-Speed Rail
System through completion of the
Inaugural High-Speed Rail Service
Project between the cities of Merced and
Bakersfield in the Central Valley of
California.2 Consistent with FRA’s
March Notice, the Authority submitted
a DSWP,3 which included an initial
request for a waiver of FRA’s Buy
America requirements for certain
products that the Authority indicated
are not produced in the United States.
In December 2023, FRA selected the
Project to receive $3,073,600,000 in
funding under the FSP Program. In a
letter dated September 13, 2024, the
Authority requested a waiver from
FRA’s Buy America requirements
consistent with the Authority’s DSWP.
The Authority is responsible for
developing product specifications and
procuring materials for use in the
Project and expects to use FSP Program
funds for costs associated with those
procurements. The Authority’s
procurement process is separate from
FRA’s review of the Authority’s request
for a waiver of Buy America
requirements, and FRA is not involved
in the development of product
specifications or the Authority’s
procurement process. FRA’s role is
limited to reviewing the Authority’s
request for a waiver, consistent with 49
U.S.C. 22905(a)(2).
In August 2023, the Authority issued
a Request for Qualifications (RFQ) to
procure six trainsets for the Project that
could meet FRA’s Passenger Equipment
Safety Standards governing Tier III
equipment (Tier III Rule), which
establishes safety standards for highspeed rail equipment and operations
that travel at speeds above 125 mph.4
Two Original Equipment Manufacturers
(OEMs) responded to the Authority’s
RFQ; however, neither OEM indicated
that they would be able to supply a fully
Buy America-compliant trainset in their
responses. Both OEMs indicated they
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 California High-Speed Rail System is a
multi-phase effort that is planned between to
provide service between San Francisco to Los
Angeles and provide a competitive transportation
mode with estimated speeds capable of 186 (or
greater) miles per hour.
3 The DSWP contains proprietary information that
FRA has determined is confidential business
information. As such, FRA is not making the DSWP
available to the public at this time; however,
pertinent non-proprietary information provided in
the DSWP is discussed in this notice.
4 See 49 CFR part 238.
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would need a waiver from FRA’s Buy
America requirements for the aluminum
car shells (shell, structure, and vehicle
paintwork), as the car shells are not
produced in the United States. In April
2024, the Authority issued a Request for
Proposals for the six trainsets. In
addition to trainsets, the Authority
identified additional products that are
not produced domestically, which
would also require a waiver. The
Authority expects to complete its
procurement process for the trainsets
and other contracts later this year.
Based on information gathered
through the procurement process and
through market research, the Authority
revised its initial DSWP, which further
explains how the Authority will meet
FRA’s Buy America requirements and
identifies any necessary waivers for
noncompliant products. FRA reviewed
the DSWP, including the market
research conducted by the Authority.
This notice summarizes FRA’s Buy
America requirements, the Authority’s
request for a waiver, and FRA’s findings
and proposed waiver.
II. FRA’s Buy America Requirements
and Policy
Projects that receive funding under
FRA’s FSP Program are subject to FRA’s
Buy America requirements. FRA’s Buy
America requirements include both: (i)
FRA’s statutory requirements for steel,
iron, and manufactured goods at 49
U.S.C. 22905(a); and (ii) requirements
under the Build America, Buy America
Act (BABA) and related guidance at 2
CFR 184.6 for construction materials.
This means that FRA can fund a project
only if the steel, iron, and manufactured
goods used in the project are produced
in the United States. 49 U.S.C. 22905(a).
In addition, FRA-funded projects must
also comply with the relevant
provisions of BABA, including the
requirement that all construction
materials used in the project must also
be produced in the United States. Public
Law 117–58, 70914(a); 2 CFR 184.6.
FRA strictly enforces compliance with
its Buy America requirements to ensure
that FRA-funded projects maximize the
use of materials produced in the United
States. FRA expects recipients to work
with suppliers to conduct thorough
market research and adequately
consider, where appropriate, qualifying
alternate items, products, or materials
that can also meet the recipient’s
technical specifications. Compliance
with FRA’s Buy America requirements
supports domestic industry and wellpaying jobs.
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III. FRA’s Authority To Waive Buy
America Requirements
There are limited circumstances in
which FRA can waive its Buy America
requirements under 49 U.S.C. 22905(a)
and BABA. FRA will grant a waiver
request 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).
Specifically, when determining
whether the steel, iron and goods
produced in the United States are not
produced in a sufficient and reasonably
available amount or are not of a
satisfactory quality pursuant to 49
U.S.C. 22905(a)(2)(B), FRA considers
whether the recipient has used
appropriate due diligence, such as
market research or by soliciting
proposals through an open procurement
process, to identify domestic products
or domestically available alternative
products that meet the recipient’s
specifications. A comparable product
that performs a similar function is not
necessarily a domestic alternative; the
product must also meet the recipient’s
specific requirements. FRA’s statutory
requirements do not require recipients
to change product specifications in
order to utilize domestic products that
do not meet the recipient’s original
specifications. If there are no
domestically produced products that
also meet the recipient’s specifications,
and the recipient has exercised
appropriate diligence, FRA may waive
its Buy America requirements based on
nonavailability, consistent with 49
U.S.C. 22905(a)(2)(B).
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
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Manufacturing Extension Partnership
(NIST MEP) 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
products for the specific project
identified in the final waiver.
In response to FRA’s March Notice,
the Authority submitted a DSWP
outlining the efforts that would be used
to ensure maximum use of available
domestic materials in the Project if the
Authority’s application was selected for
funding under the FSP Program. In the
DSWP, the Authority explained that the
Project would require the use of
products that are not produced in the
United States, which would require a
waiver of FRA’s Buy America
requirements. The Authority did not
identify any construction materials
covered under BABA that would require
a waiver. The Authority explained that
the use of these non-compliant products
is necessary to ensure the safety and
reliability of the high-speed rail system.
Specifically, the Authority requested a
waiver for the following:
• Car Shells (shell structure, frame,
vehicle paintwork) for six trainsets
• Eurobalises and Euroloops 5
• Counting Heads and Axle Counter
Sensors
• Truck Press (test stand)
• Turnout Systems including Derailers
• Fire Alarm Systems
FRA recently conducted a similar
analysis for these high-speed rail
products in its final nonavailability
waiver for the Brightline West HighSpeed Passenger Train Project
(Brightline West Waiver) based on a
request from the Nevada Department of
Transportation (NDOT) and Brightline
West, the private project sponsor. 6
Brightline West conducted market
research for these same products and
coordinated with potential suppliers
and the NIST MEP to locate domestic
suppliers. In the final waiver, FRA
concluded that the high-speed rail
products, which are the same items for
which the Authority seeks a waiver, are
not produced in the United States based
on Brightline West’s market research
and coordination with potential
suppliers. In developing its waiver
request, the Authority noted that it
closely coordinated with Brightline
West to identify products that are not
currently produced in the United States.
The Authority requested a waiver for
aluminum car shells for the six trainsets
that will be purchased for and used in
the Project. The request is based on
responses from two OEMs that indicated
they could not provide a fully compliant
trainset without a waiver for the car
shells, which are not produced in the
United States. The Authority notes that
the car shells are a necessary feature for
the safe and efficient operation of the
high-speed rail trainset. Specifically, the
Authority explains the car shells are
required to achieve 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.
FRA previously considered the
domestic availability of aluminum car
shells in the Brightline West Waiver,
sought public comment on this finding
and utilized the NIST MEP’s supplier
scouting program to identify potential
domestic suppliers. FRA concluded the
car shells are not produced in the
United States. Here, the Authority
proposes to use the same, or
substantially similar, car shells to those
described in the Brightline West Waiver.
Similar to the Brightline West HighSpeed Passenger Train Project, the
Authority proposes to use the European
Rail Traffic Management System
(ERTMS) for the Project. The Authority
proposes to use ERTMS to ensure safety
of the high-speed rail system and
expects to conform to FRA’s Tier III
Rule, 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.7
Although the Authority’s
procurement process for the signal
system is still ongoing, the Authority
requested a waiver for eurobalises and
euroloops that can be used in the
ERTMS for the Project, as these
products will be required for the
ERTMS regardless of the selected
supplier. FRA previously considered the
5 Eurobalise and euroloops are products installed
between the rails of a railway that are part of the
European train control system. These products store
infrastructure data (e.g., position reference, speed
limits, line gradient, works on the line) and can
send this information to the train.
6 Notice of Nonavailability Waiver of Buy
America Requirements for the Nevada Department
of Transportation to Purchase Certain High-Speed
Rail Products, 89 FR 45934 (May 24, 2024).
7 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.
IV. The Authority’s Request for Waiver
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availability of eurobalises and euroloops
in the Brightline West Waiver and
concluded these products are not
produced in the United States.
In addition, and similar to the
Brightline West Waiver, the Project will
also require the use of specialty highspeed rail turnouts to allow trains to
smoothly diverge to a passing siding,
which plays a key role in safety and
stability of train operations. The Project
will also require fire alarm panels and
devices for use in stations, garages, and
maintenance facilities. The Authority
has researched known suppliers but did
not identify a domestic manufacturer for
these products, which FRA also
previously concluded are not produced
in the United States.8
The Authority explains in the DSWP
that over 98 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.
In addition, the Project has created
approximately 13,000 domestic jobs
across the construction period and
includes a community benefits
agreement designed to assist small
businesses and job seekers in finding or
obtaining construction contracts.9 The
Authority has also reached an
agreement with rail labor, which may
result in ongoing operations and
maintenance work being performed by
union labor.10 The DSWP further
explains efforts the Authority will take
to facilitate, where feasible, a ramp up
in domestic production capabilities.
At the time of this proposed waiver,
the Authority has not selected an OEM
for the trainsets and has not completed
its procurement process for the Project.
As noted above, the Authority’s
procurement process is separate from
FRA’s consideration of nonavailability
under 49 U.S.C. 22905(a)(2)(B). FRA
expects the Authority to make its
procurement decision based on the
needs for the Project and to select
products that meet the Authority’s
specifications. If, based on the final
procurement, there are changes to the
items described in the final waiver, the
Authority may need to request
additional waivers from FRA.
8 89
FR 45934.
more information on the Community
Benefits Agreement, see: https://hsr.ca.gov/
business-opportunities/general-info/communitybenefits-agreement/.
10 In November 2023, 13 rail unions representing
more than 160,000 workers signed a Memorandum
of Understanding with California High-Speed Rail
Authority, establishing a commitment for the use of
highly skilled union labor required to operate and
maintain the system.
9 For
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V. Findings and Proposed Waiver
FRA has preliminarily determined
that these products are not produced in
the United States in a sufficient and
reasonably available amount or are not
of a satisfactory quality, consistent with
49 U.S.C. 22905(a)(2)(B). FRA finds that
the Authority has conducted
appropriate due diligence through
market research to identify potential
suppliers for the Project. The
Authority’s research included
discussions with potential suppliers and
coordination with Brightline West. FRA
previously considered the products
described in the Authority’s request
with respect to the Brightline West
High-Speed Passenger Train Project and
determined the products were not
produced in the United States, which
included consultation with NIST–MEP
through its supplier scouting program.11
Given the short amount of time between
FRA’s previous findings and the
Authority’s request, FRA is relying on
its findings in the Brightline West
Waiver to support its determination
with respect to the Authority’s request.
Based on its review of the waiver
request, the Authority’s DSWP, and
FRA’s previous findings in the
Brightline West Waiver, FRA proposes
to waive its Buy America requirements
for the products listed above in Section
IV.
The proposed waiver would apply
only to products listed in Section IV for
use in the Project. FRA is not proposing
to waive any requirements under BABA,
as the proposed waiver does not apply
to any construction materials used in
the Project. The proposed waiver would
not apply to other FRA recipients or to
other grants that might be made to the
Authority for other projects (including
any future phases related to the Project).
This proposed waiver will expire upon
the end of the period of performance
and closeout of the grant agreement for
the Project.
VI. 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.
11 89
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77227
Issued in Washington DC
Amitabha Bose,
Administrator.
[FR Doc. 2024–21574 Filed 9–19–24; 8:45 am]
BILLING CODE 4910–06–P
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
Limitation on Claims Against Proposed
Public Transportation Project—West
Santa Ana Branch Transit Corridor
Project, Cities of Los Angeles, Vernon,
Huntington Park, Bell, Cudahy, South
Gate, Downey, Paramount, Bellflower,
Cerritos, and Artesia; County of Los
Angeles, California
Federal Transit Administration
(FTA), Department of Transportation
(DOT).
ACTION: Notice.
AGENCY:
This notice announces final
environmental actions taken by the
Federal Transit Administration (FTA)
regarding the West Santa Ana Branch
Transit Corridor Project, Cities of Los
Angeles, Vernon, Huntington Park, Bell,
Cudahy, South Gate, Downey,
Paramount, Bellflower, Cerritos, and
Artesia; County of Los Angeles,
California. The corridor is also known
as the Southeast Gateway Line. The
purpose of this notice is to publicly
announce FTA’s environmental
decisions on the subject project, and to
activate the limitation on any claims
that may challenge these final
environmental actions.
DATES: A claim seeking judicial review
of FTA actions announced herein for the
listed public transportation project will
be barred unless the claim is filed on or
before February 18, 2025.
FOR FURTHER INFORMATION CONTACT:
Kathryn Loster, Assistant Chief Counsel,
Office of Chief Counsel, (312) 705–1269,
or Saadat Khan, Environmental
Protection Specialist, Office of
Environmental Programs, (202) 366–
9647. FTA is located at 1200 New Jersey
Avenue SE, Washington, DC 20590.
Office hours are from 9:00 a.m. to 5:00
p.m., Monday through Friday, except
Federal holidays.
SUPPLEMENTARY INFORMATION: Notice is
hereby given that FTA has taken final
agency actions subject to 23 U.S.C.
139(l) by issuing certain approvals for
the public transportation project listed
below. The actions on the project, as
well as the laws under which such
actions were taken, are described in the
documentation issued in connection
with the project to comply with the
SUMMARY:
E:\FR\FM\20SEN1.SGM
20SEN1
Agencies
[Federal Register Volume 89, Number 183 (Friday, September 20, 2024)]
[Notices]
[Pages 77224-77227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-21574]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[Docket No. FRA-2024-0104]
Notice of Proposed Nonavailability Waiver of Buy America
Requirements for Certain High-Speed Rail Products for the California
Inaugural High-Speed Rail Service Project
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice; 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
California High-Speed Rail Authority (the Authority) to use certain
products that are not produced in the United States for use in the
California Inaugural High-Speed Rail Service Project between Merced,
California and Bakersfield, California (Project). FRA is funding the
Project under the Federal-State Partnership for Intercity Passenger
Rail Program (FSP Program); therefore, FRA's Buy America requirements
apply to the Project. FRA's Buy America requirements include both FRA's
statutory requirements, which require 100 percent of the manufactured
products and steel and iron used in an FRA-funded project to be
produced in the United States, and the Build America, Buy America Act
(BABA), which requires that all construction materials used in the FRA-
funded project be produced in the United States. FRA is not proposing
to waive the applicable BABA requirements for construction materials
used in the Project. The proposed waiver would apply to the aluminum
car shells, signal systems, high-speed rail turnouts and fire alarm
systems based on the domestic nonavailability of such
[[Page 77225]]
products, as identified by the Authority. The Authority estimates that
over 98 percent of the total direct dollar expenditures for the Project
would be spent on domestically sourced products and labor, including
100 percent of the civil infrastructure costs.
DATES: Comments must be received by October 7, 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-2024-0104).
Note that all submissions received, including any personal information
provided, will be posted without change and will be available to the
public on 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 Shreyas Bhatnagar, Regional Supervisor, Office of
Regional Outreach & Project Delivery, Office of Railroad Development,
FRA, telephone: (202) 495-8630, email: [email protected] or
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:
I. Project History and Background
On December 7, 2022, FRA published a Notice of Funding Opportunity
(NOFO) announcing application requirements and procedures to obtain
grant funding under the FSP Program for projects not located on the
Northeast Corridor for Fiscal Year 2022. The FSP Program provides a
Federal funding opportunity to improve passenger rail service. On
February 3, 2023, FRA published a notice adding funding and extending
the application period for the FSP Program NOFO. On March 22, 2023, FRA
published a notice (March Notice) inviting high-speed rail project
sponsors to voluntarily submit, in advance of being selected to receive
FRA funding, a domestic sourcing and workforce plan (DSWP) to
demonstrate how the sponsor will maximize the use of domestic goods,
products and materials, consistent with FRA's Buy America
requirements.\1\
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\1\ Advancing High-Speed Rail Projects Intended for Operations
Over 160 Miles Per Hour Through Domestic Sourcing Plans and Buy
America Compliance, 88 FR 17289 (March 22, 2023).
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The Authority applied for FSP Program funding expressing its intent
to advance the California High-Speed Rail System through completion of
the Inaugural High-Speed Rail Service Project between the cities of
Merced and Bakersfield in the Central Valley of California.\2\
Consistent with FRA's March Notice, the Authority submitted a DSWP,\3\
which included an initial request for a waiver of FRA's Buy America
requirements for certain products that the Authority indicated are not
produced in the United States. In December 2023, FRA selected the
Project to receive $3,073,600,000 in funding under the FSP Program. In
a letter dated September 13, 2024, the Authority requested a waiver
from FRA's Buy America requirements consistent with the Authority's
DSWP.
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\2\ The California High-Speed Rail System is a multi-phase
effort that is planned between to provide service between San
Francisco to Los Angeles and provide a competitive transportation
mode with estimated speeds capable of 186 (or greater) miles per
hour.
\3\ The DSWP contains proprietary information that FRA has
determined is confidential business information. As such, FRA is not
making the DSWP available to the public at this time; however,
pertinent non-proprietary information provided in the DSWP is
discussed in this notice.
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The Authority is responsible for developing product specifications
and procuring materials for use in the Project and expects to use FSP
Program funds for costs associated with those procurements. The
Authority's procurement process is separate from FRA's review of the
Authority's request for a waiver of Buy America requirements, and FRA
is not involved in the development of product specifications or the
Authority's procurement process. FRA's role is limited to reviewing the
Authority's request for a waiver, consistent with 49 U.S.C.
22905(a)(2).
In August 2023, the Authority issued a Request for Qualifications
(RFQ) to procure six trainsets for the Project that could meet FRA's
Passenger Equipment Safety Standards governing Tier III equipment (Tier
III Rule), which establishes safety standards for high-speed rail
equipment and operations that travel at speeds above 125 mph.\4\ Two
Original Equipment Manufacturers (OEMs) responded to the Authority's
RFQ; however, neither OEM indicated that they would be able to supply a
fully Buy America-compliant trainset in their responses. Both OEMs
indicated they would need a waiver from FRA's Buy America requirements
for the aluminum car shells (shell, structure, and vehicle paintwork),
as the car shells are not produced in the United States. In April 2024,
the Authority issued a Request for Proposals for the six trainsets. In
addition to trainsets, the Authority identified additional products
that are not produced domestically, which would also require a waiver.
The Authority expects to complete its procurement process for the
trainsets and other contracts later this year.
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\4\ See 49 CFR part 238.
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Based on information gathered through the procurement process and
through market research, the Authority revised its initial DSWP, which
further explains how the Authority will meet FRA's Buy America
requirements and identifies any necessary waivers for noncompliant
products. FRA reviewed the DSWP, including the market research
conducted by the Authority.
This notice summarizes FRA's Buy America requirements, the
Authority's request for a waiver, and FRA's findings and proposed
waiver.
II. FRA's Buy America Requirements and Policy
Projects that receive funding under FRA's FSP Program are subject
to FRA's Buy America requirements. FRA's Buy America requirements
include both: (i) FRA's statutory requirements for steel, iron, and
manufactured goods at 49 U.S.C. 22905(a); and (ii) requirements under
the Build America, Buy America Act (BABA) and related guidance at 2 CFR
184.6 for construction materials. This means that FRA can fund a
project only if the steel, iron, and manufactured goods used in the
project are produced in the United States. 49 U.S.C. 22905(a). In
addition, FRA-funded projects must also comply with the relevant
provisions of BABA, including the requirement that all construction
materials used in the project must also be produced in the United
States. Public Law 117-58, 70914(a); 2 CFR 184.6.
FRA strictly enforces compliance with its Buy America requirements
to ensure that FRA-funded projects maximize the use of materials
produced in the United States. FRA expects recipients to work with
suppliers to conduct thorough market research and adequately consider,
where appropriate, qualifying alternate items, products, or materials
that can also meet the recipient's technical specifications. Compliance
with FRA's Buy America requirements supports domestic industry and
well-paying jobs.
[[Page 77226]]
III. FRA's Authority To Waive Buy America Requirements
There are limited circumstances in which FRA can waive its Buy
America requirements under 49 U.S.C. 22905(a) and BABA. FRA will grant
a waiver request 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).
Specifically, when determining whether the steel, iron and goods
produced in the United States are not produced in a sufficient and
reasonably available amount or are not of a satisfactory quality
pursuant to 49 U.S.C. 22905(a)(2)(B), FRA considers whether the
recipient has used appropriate due diligence, such as market research
or by soliciting proposals through an open procurement process, to
identify domestic products or domestically available alternative
products that meet the recipient's specifications. A comparable product
that performs a similar function is not necessarily a domestic
alternative; the product must also meet the recipient's specific
requirements. FRA's statutory requirements do not require recipients to
change product specifications in order to utilize domestic products
that do not meet the recipient's original specifications. If there are
no domestically produced products that also meet the recipient's
specifications, and the recipient has exercised appropriate diligence,
FRA may waive its Buy America requirements based on nonavailability,
consistent with 49 U.S.C. 22905(a)(2)(B).
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 (NIST MEP) 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 products for the specific project
identified in the final waiver.
IV. The Authority's Request for Waiver
In response to FRA's March Notice, the Authority submitted a DSWP
outlining the efforts that would be used to ensure maximum use of
available domestic materials in the Project if the Authority's
application was selected for funding under the FSP Program. In the
DSWP, the Authority explained that the Project would require the use of
products that are not produced in the United States, which would
require a waiver of FRA's Buy America requirements. The Authority did
not identify any construction materials covered under BABA that would
require a waiver. The Authority explained that the use of these non-
compliant products is necessary to ensure the safety and reliability of
the high-speed rail system. Specifically, the Authority requested a
waiver for the following:
Car Shells (shell structure, frame, vehicle paintwork) for six
trainsets
Eurobalises and Euroloops \5\
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\5\ Eurobalise and euroloops are products installed between the
rails of a railway that are part of the European train control
system. These products store infrastructure data (e.g., position
reference, speed limits, line gradient, works on the line) 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
FRA recently conducted a similar analysis for these high-speed rail
products in its final nonavailability waiver for the Brightline West
High-Speed Passenger Train Project (Brightline West Waiver) based on a
request from the Nevada Department of Transportation (NDOT) and
Brightline West, the private project sponsor. \6\ Brightline West
conducted market research for these same products and coordinated with
potential suppliers and the NIST MEP to locate domestic suppliers. In
the final waiver, FRA concluded that the high-speed rail products,
which are the same items for which the Authority seeks a waiver, are
not produced in the United States based on Brightline West's market
research and coordination with potential suppliers. In developing its
waiver request, the Authority noted that it closely coordinated with
Brightline West to identify products that are not currently produced in
the United States.
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\6\ Notice of Nonavailability Waiver of Buy America Requirements
for the Nevada Department of Transportation to Purchase Certain
High-Speed Rail Products, 89 FR 45934 (May 24, 2024).
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The Authority requested a waiver for aluminum car shells for the
six trainsets that will be purchased for and used in the Project. The
request is based on responses from two OEMs that indicated they could
not provide a fully compliant trainset without a waiver for the car
shells, which are not produced in the United States. The Authority
notes that the car shells are a necessary feature for the safe and
efficient operation of the high-speed rail trainset. Specifically, the
Authority explains the car shells are required to achieve 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.
FRA previously considered the domestic availability of aluminum car
shells in the Brightline West Waiver, sought public comment on this
finding and utilized the NIST MEP's supplier scouting program to
identify potential domestic suppliers. FRA concluded the car shells are
not produced in the United States. Here, the Authority proposes to use
the same, or substantially similar, car shells to those described in
the Brightline West Waiver.
Similar to the Brightline West High-Speed Passenger Train Project,
the Authority proposes to use the European Rail Traffic Management
System (ERTMS) for the Project. The Authority proposes to use ERTMS to
ensure safety of the high-speed rail system and expects to conform to
FRA's Tier III Rule, 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.\7\
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\7\ 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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Although the Authority's procurement process for the signal system
is still ongoing, the Authority requested a waiver for eurobalises and
euroloops that can be used in the ERTMS for the Project, as these
products will be required for the ERTMS regardless of the selected
supplier. FRA previously considered the
[[Page 77227]]
availability of eurobalises and euroloops in the Brightline West Waiver
and concluded these products are not produced in the United States.
In addition, and similar to the Brightline West Waiver, the Project
will 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. The Project will also
require fire alarm panels and devices for use in stations, garages, and
maintenance facilities. The Authority has researched known suppliers
but did not identify a domestic manufacturer for these products, which
FRA also previously concluded are not produced in the United States.\8\
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\8\ 89 FR 45934.
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The Authority explains in the DSWP that over 98 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. In addition, the Project has created
approximately 13,000 domestic jobs across the construction period and
includes a community benefits agreement designed to assist small
businesses and job seekers in finding or obtaining construction
contracts.\9\ The Authority has also reached an agreement with rail
labor, which may result in ongoing operations and maintenance work
being performed by union labor.\10\ The DSWP further explains efforts
the Authority will take to facilitate, where feasible, a ramp up in
domestic production capabilities.
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\9\ For more information on the Community Benefits Agreement,
see: https://hsr.ca.gov/business-opportunities/general-info/community-benefits-agreement/.
\10\ In November 2023, 13 rail unions representing more than
160,000 workers signed a Memorandum of Understanding with California
High-Speed Rail Authority, establishing a commitment for the use of
highly skilled union labor required to operate and maintain the
system.
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At the time of this proposed waiver, the Authority has not selected
an OEM for the trainsets and has not completed its procurement process
for the Project. As noted above, the Authority's procurement process is
separate from FRA's consideration of nonavailability under 49 U.S.C.
22905(a)(2)(B). FRA expects the Authority to make its procurement
decision based on the needs for the Project and to select products that
meet the Authority's specifications. If, based on the final
procurement, there are changes to the items described in the final
waiver, the Authority may need to request additional waivers from FRA.
V. Findings and Proposed Waiver
FRA has preliminarily determined that these products are not
produced in the United States in a sufficient and reasonably available
amount or are not of a satisfactory quality, consistent with 49 U.S.C.
22905(a)(2)(B). FRA finds that the Authority has conducted appropriate
due diligence through market research to identify potential suppliers
for the Project. The Authority's research included discussions with
potential suppliers and coordination with Brightline West. FRA
previously considered the products described in the Authority's request
with respect to the Brightline West High-Speed Passenger Train Project
and determined the products were not produced in the United States,
which included consultation with NIST-MEP through its supplier scouting
program.\11\ Given the short amount of time between FRA's previous
findings and the Authority's request, FRA is relying on its findings in
the Brightline West Waiver to support its determination with respect to
the Authority's request. Based on its review of the waiver request, the
Authority's DSWP, and FRA's previous findings in the Brightline West
Waiver, FRA proposes to waive its Buy America requirements for the
products listed above in Section IV.
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\11\ 89 FR 45934.
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The proposed waiver would apply only to products listed in Section
IV for use in the Project. FRA is not proposing to waive any
requirements under BABA, as the proposed waiver does not apply to any
construction materials used in the Project. The proposed waiver would
not apply to other FRA recipients or to other grants that might be made
to the Authority for other projects (including any future phases
related to the Project). This proposed waiver will expire upon the end
of the period of performance and closeout of the grant agreement for
the Project.
VI. 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. 2024-21574 Filed 9-19-24; 8:45 am]
BILLING CODE 4910-06-P