Notice of Proposed Waiver of Buy America Requirements for the Pacific Island Territories and the Freely Associated States, 101688-101691 [2024-29489]

Download as PDF 101688 Federal Register / Vol. 89, No. 241 / Monday, December 16, 2024 / Notices DEPARTMENT OF TRANSPORTATION Maritime Administration [Docket No. MARAD–2024–0158] Request for Comments on the Renewal of a Previously Approved Collection: Application for Construction Reserve Fund and Annual Statements (CRF) Maritime Administration, DOT. Notice. AGENCY: ACTION: The Maritime Administration (MARAD) invites public comments on our intention to request the Office of Management and Budget (OMB) approval to renew an information collection in accordance with the Paperwork Reduction Act of 1995. The proposed collection OMB 2133–0032 (Application for Construction Reserve Fund (CRF) and Annual Statements) is used to evaluate an applicant’s eligibility for CRF program benefits. There was a reduction in the public burden since the last renewal. We are required to publish this notice in the Federal Register to obtain comments from the public and affected agencies. ADDRESSES: Written comments and recommendations for the proposed information collections should be sent within 30 days of publication of this notice to www.reginfo.gov/public/do/ PRAMain. Find this information collection by selecting ‘‘Currently under 30-day Review—Open for Public Comments’’ or by using the search function. SUMMARY: lotter on DSK11XQN23PROD with NOTICES1 FOR FURTHER INFORMATION CONTACT: David M. Gilmore, Director, 202–366– 5737, Office of Marine Financing, Maritime Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, Email: David.gilmore@dot.gov. SUPPLEMENTARY INFORMATION: Title: Application for Construction Reserve Fund Program (CRF). OMB Control Number: 2133–0032. Type of Request: Extension of a previously approved collection. Abstract: The Construction Reserve Fund Program (CRF), authorized by 46 U.S.C. chapter 533, is a financial assistance program which provides tax deferral benefits to U.S.-flag operators. Eligible parties can defer the gain attributable to the sale or loss of a vessel, provided the proceeds are used to expand or modernize the U.S. merchant fleet. The primary purpose of the CRF is to promote the construction, reconstruction, reconditioning, or acquisition of merchant vessels which are necessary for national defense and to the development of U.S. commerce. VerDate Sep<11>2014 17:41 Dec 13, 2024 Jkt 265001 Respondents: Citizens who own or operate vessels in the U.S. foreign or domestic commerce who desire tax benefits under the CRF must respond. Affected Public: Owners or operators of vessels in the domestic or foreign commerce. Estimated Number of Respondents: 10. Estimated Number of Responses: 10. Estimated Hours per Response: 9. Annual Estimated Total Annual Burden Hours: 90. Frequency of Response: Once Annually. A 60-day Federal Register Notice soliciting comments on this information collection was published on October 1, 2024 (89 FR 80011) in the Federal Register indicating comments should be submitted by December 2, 2024. No comments were received. (Authority: The Paperwork Reduction Act of 1995; 44 U.S.C. chapter 35, as amended; and 49 CFR 1.49.) By Order of the Maritime Administrator. T. Mitchell Hudson, Jr., Secretary, Maritime Administration. [FR Doc. 2024–29537 Filed 12–13–24; 8:45 am] and its territories). The waiver will remain in effect for five years after the effective date of the final waiver. DATES: Comments must be received by December 31, 2024. ADDRESSES: Please submit your comments to the U.S. Government electronic docket site at https:// www.regulations.gov, Docket: DOT– OST–2024–0129. Note: All submissions received, including any personal information therein, will be posted without change or alteration to https:// www.regulations.gov. For more information, you may review DOT’s complete Privacy Act Statement published in the Federal Register on April 11, 2000 (65 FR 19477). FOR FURTHER INFORMATION CONTACT: For questions about this notice, please contact Elizabeth Fox, DOT Office of the Assistant Secretary for Transportation Policy, at elizabeth.fox@dot.gov or at 202–366–4540. For legal questions, please contact Jennifer KirbyMcLemore, DOT Office of the General Counsel, 405–446–6883, or via email at jennifer.mclemore@dot.gov. SUPPLEMENTARY INFORMATION: BILLING CODE 4910–81–P DEPARTMENT OF TRANSPORTATION Office of the Secretary [Docket No.: DOT–OST–2024–0129] Notice of Proposed Waiver of Buy America Requirements for the Pacific Island Territories and the Freely Associated States ACTION: Notice; request for comments. The Department of Transportation (DOT) is seeking comments on a proposed general applicability public interest waiver of the requirements of section 70914(a) of the Build America, Buy America Act (BABA) and related domestic preference statutes administered by DOT and its Operating Administrations (OAs) for Federal financial assistance awarded for infrastructure projects located in the Commonwealth of Northern Mariana Islands (CNMI), Guam, and American Samoa, collectively referred to as the Pacific Island territories. The proposed waiver would also apply to discretionary grant assistance provided by DOT to the Freely Associated States (the Republic of Palau, Republic of the Marshall Islands, and Federated States of Micronesia) in the Pacific that is subject to a domestic preference statute (which does not include BABA, as that statute only applies to the United States SUMMARY: PO 00000 Frm 00140 Fmt 4703 Sfmt 4703 Background The Buy America preferences set forth in section 70914(a) of BABA 1 require that all iron, steel, manufactured products, and construction materials used for infrastructure projects in the United States under Federal financial assistance awards be produced in the United States. Under section 70914(b) and in accordance with the Office of Management and Budget (OMB)’s Guidance Memorandum M–24–02, Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure, DOT may waive the application of BABA requirements in any case in which it finds that: (i) applying the domestic content procurement preference would be inconsistent with the public interest; (ii) types of iron, steel, manufactured products, or construction materials are not produced in the U.S. in sufficient and reasonably available quantities or of a satisfactory quality; or (iii) the inclusion of iron, steel, manufactured products, or construction materials produced in the U.S. will increase the cost of the overall project by more than 25 percent. BABA also provides that the preferences under section 70914 apply 1 The Build America, Buy America Act was included as title XI, subtitle A of the Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117–58). E:\FR\FM\16DEN1.SGM 16DEN1 Federal Register / Vol. 89, No. 241 / Monday, December 16, 2024 / Notices lotter on DSK11XQN23PROD with NOTICES1 only to the extent that a domestic content procurement preference as described in section 70914 does not already apply to iron, steel, manufactured products, and construction materials. IIJA section 70917(a)–(b). Federal financial assistance programs administered by DOT’s Operating Administrations (OAs) 2 are subject to a variety of modespecific statutes that apply particular Buy America 3 requirements to iron, steel, and manufactured products, including 49 U.S.C. 50101 (FAA); 23 U.S.C. 313 (FHWA); 49 U.S.C. 5323(j) (FTA); and 46 U.S.C. 54101(d)(2) (MARAD). Recent annual appropriations acts have also required DOT to apply the Buy American Act (41 U.S.C. chapter 83) to funds appropriated under those acts,4 where a modespecific statute is not in place. These statutes also allow for waivers of the Buy America requirements to be issued when the Department determines that doing so is in the public interest. DOT and its OAs provide financial assistance to the three Pacific Island territories of Guam, American Samoa, and CNMI through both discretionary grants and allocated programs, including assistance programs for highways and bridges, public transportation, airports, and port facilities. The Freely Associated States (the Republic of Palau, Republic of the Marshall Islands, and Federated States of Micronesia) in the Pacific region are also eligible recipients of discretionary grants under FAA’s Airport Improvement Program (AIP). During FY 2024, DOT OAs provided more than $132.7 million in financial assistance for at least 20 capital projects in the Pacific Island territories under various programs where infrastructure is an eligible activity and may be subject to BABA or other DOT existing Buy America requirements. DOT also provided $47.6 million in AIP discretionary grants to the Freely 2 DOT OAs that provide or administer financial assistance covered under this proposed waiver include the Federal Aviation Administration (FAA); Federal Highway Administration (FHWA); Federal Transit Administration (FTA); and the Maritime Administration (MARAD). 3 In this notice, references to ‘‘Buy America’’ include domestic preference laws referred to ‘‘Buy American’’ that apply to DOT financial assistance programs. 4 For example, section 409 of the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2024 states that ‘‘no funds appropriated pursuant to this Act may be expended by an entity unless the entity agrees that in expending the assistance the entity will comply with sections 2 through 4 of the Act of March 3, 1933 (41 U.S.C. 8301–8305, popularly known as the ‘Buy American Act’).’’ VerDate Sep<11>2014 17:41 Dec 13, 2024 Jkt 265001 Associated States in the Pacific region for 3 projects during that time. On April 29, 2024, DOT issued a temporary general applicability waiver of the requirements of section 70914(a) of BABA and related domestic preference statutes administered by DOT and its OAs. The DOT waiver was part of an interagency effort, led by the OMB, to provide time for DOT and other infrastructure agencies to collect and analyze evidence to determine if a longterm waiver of these requirements is in the public interest and allow time for DOT and its OAs to offer technical assistance to potential assistance recipients in the remote communities in the Pacific Island territories and Freely Associated States. The temporary waiver expires on March 1, 2025. During the temporary general applicability waiver period, DOT has worked with OMB’s Made in America Office (MIAO) and with other infrastructure agencies to better understand the local manufacturing environment, consider how to best balance the equities for residents of the Pacific Island territories and domestic suppliers, and explore ways to potentially ease supply chain challenges for infrastructure projects in those territories. The Pacific Islands are over 5,000 miles from the mainland United States and must import products via air or sea. These economies have few local heavy manufacturers and largely rely on regional supply chains from east Asia, Australia, and New Zealand. Most goods, equipment, materials, and supplies are imported and rely on shipping with extended timelines and unpredictable shipping cost fluctuations. Moreover, materials sourced from the mainland U.S. lead to additional shipping fees and longer lead times, thus significantly extending construction activity schedules. Along with other Federal agencies, DOT has reviewed the U.S. International Trade Commission’s 2023 report ‘‘U.S.Pacific Islands Trade and Investment: Impediments and Opportunities’’, which noted the geographic isolation, high costs of shipping, dependence on imports, regulatory barriers, limited economies of scale, and environmental challenges as persistent barriers that the Pacific Island territories face. Additionally, the lack of available land on the Pacific Island territories creates barriers for developing new manufacturing and assembly facilities. Those infrastructure products readily available and produced locally on the Pacific Islands, such as aggregates and cement products, are mostly statutorily exempt from BABA requirements. For these reasons, the DOT remains PO 00000 Frm 00141 Fmt 4703 Sfmt 4703 101689 concerned that complying with the domestic sourcing requirements may increase already elevated project time and costs. In considering this waiver, DOT consulted with the relevant Federal assistance programs in the respective OAs, including the regional offices in those agencies that directly administer DOT funding programs in the Pacific Island territories and Freely Associated States. DOT also relied on other communications that it has received from stakeholders in those territories. For example, CNMI and Guam have cited their isolated location in the Western Pacific and reliance on ocean freight as the only mode of transporting commodities to the island as creating significant challenges in obtaining materials from domestic sources, with impacts on both project costs and delivery schedules. The two territories have also indicated that shipping construction materials from the continental United States raises shipping costs by approximately 30 percent above the cost to ship directly to the islands from Asia. In August 2024, the U.S. Department of the Interior (DOI) hosted the third Territorial Climate and Infrastructure Workshop in Honolulu, HI, which included many representatives from various territorial agencies and departments. During the workshop, DOI and DOT led a session on the Build America, Buy America Act, during which many participants described the structural challenges the territories face in complying with Buy America requirements and the desire for relief due to the significant cost increases and delays in project timelines that would ensue. In addition, in February 2023, DOI hosted the Interagency Group on Insular Areas, at which the governors of the Territories expressed concerns related to BABA implementation and potential project delays and requested that Federal agencies be flexible in these requirements, including consideration of waivers. Additionally, representatives from American Samoa have indicated to the Federal Emergency Management Agency that ‘‘As a containerized community, our territories depend on goods, equipment, materials, and supplies to be imported.’’ They further stated that ‘‘we can purchase equipment from foreign countries closer to American Samoa and with reasonable prices and shorter shipping time.’’ American Samoa representatives also noted that availability of materials from nearby foreign countries such as New Zealand and Australia would result in a significant cost savings to the grantors. E:\FR\FM\16DEN1.SGM 16DEN1 lotter on DSK11XQN23PROD with NOTICES1 101690 Federal Register / Vol. 89, No. 241 / Monday, December 16, 2024 / Notices Proposed Waiver and Request for Comments DOT is proposing to use its authority under section 70914(b)(1) to waive the Act’s Buy America preferences for iron and steel, manufactured products, and construction materials used in infrastructure projects located within the Pacific Island territories of CNMI, Guam, or American Samoa and funded under DOT-administered financial assistance programs, on the basis that doing so would be in the public interest. The proposed waiver would apply to all awards obligated after the effective date and, in the case of awards obligated prior to the effective date, the proposed waiver would apply to all expenditures for non-domestic iron, steel, manufactured products, and construction materials incurred after the effective date. The proposed waiver would not apply to the following products that have been identified by OMB as critical supply chains that warrant special consideration: • Telecommunications infrastructure: Æ Telecommunications equipment used to transmit and receive digital signals across constructed networks (e.g., vaults, cabinets, routers, switches, optical line terminals (OLTs), optical network terminals (ONTs), wi-fi capable customer equipment, and other electronic hardware used to connect the network). This includes: D Video surveillance equipment, including any equipment that is used in fixed and mobile networks that provides advanced communications service in the form of a video surveillance service, provided the equipment includes or uses electronic components. This encompasses any equipment that can be used in a fixed or mobile broadband network to enable users to originate and receive high quality voice, data, graphics, and video telecommunications using technology with connection speeds of at least 200 kbps in either direction.5 D Broadcasting equipment, including radio frequency devices contained in electronic-electrical products that are capable of emitting radio frequency energy by radiation, conduction, or other means. These products have the potential to cause interference to radio services operating in the radio frequency range of 9 kHz to 3000 GHz.6 Æ Broadband equipment (e.g., fiber/ coax cable, conduit, pedestals, 5 https://www.fcc.gov/laboratory-division/ equipment-authorization-approval-guide/ equipment-authorization-system#step2. 6 https://www.fcc.gov/oet/ea/rfdevice. VerDate Sep<11>2014 17:41 Dec 13, 2024 Jkt 265001 handholes, tower structures, and other physical components used to connect to telecommunication equipment) • Grid-connected utility-scale energy generation and stationary storage (>5MW) • Cargo handling equipment, including cranes, that are manufactured by or contain any networks, operating systems, or software identified in U.S. Maritime Advisory 2024–0026 or successor advisories 7 While these items would be excluded from this general waiver, DOT recognizes that purchases of these items from non-domestic sources as part of a federally-assisted project may be warranted in certain circumstances. For those individual projects, DOT and its OAs will consider requests for potential waivers of BABA or other Buy America requirements on a case-by-case basis, with special attention to any strategic security issues that may be associated with those purchases. DOT specifically requests comment on the items that have been identified by OMB as critical supply chains that warrant special consideration and whether any of those items should be removed from the list, for example broadband equipment. If items are removed from this list following the public comment period, then those products would be included within the scope of the final waiver. Because many DOT-administered financial assistance programs are also subject to program-specific domestic preference requirements, the waiver proposed in this notice would also apply to those requirements. Specifically, the waiver would also be an exercise of DOT’s authority to issue public interest waivers under 23 U.S.C. 313(b)(1), 49 U.S.C. 5323(j), 46 U.S.C. 54101(d)(2)(B)(i)(I), 49 U.S.C. 50101(b)(1), and 41 U.S.C. chapter 83. Under those DOT authorities, the proposed waiver would also apply to projects in the Freely Associated States (the Republic of Palau, Republic of the Marshall Islands, and Federated States of Micronesia).8 7 2024–002–Worldwide-Foreign Adversarial Technological, Physical, and Cyber Influence https://www.maritime.dot.gov/msci/2024-002worldwide-foreign-adversarial-technologicalphysical-and-cyber-influence. 8 The proposed waiver under section 70914(b)(1) of BABA excludes projects in the Freely Associated States because the requirements under section 70914(a) are applicable only to infrastructure projects ‘‘in the United States’’ and, therefore, the BABA requirements to not apply to projects in the Freely Associated States. However, airports located in the Freely Associated States are eligible recipients under FAA’s Airport Improvement Program, and the Buy American requirements PO 00000 Frm 00142 Fmt 4703 Sfmt 4703 The proposed duration of the waiver is five years after the effective date of the final waiver. The Department will periodically review this waiver to assess whether it remains necessary to the fulfillment of DOT’s missions and goals and consistent with applicable legal authorities, such as the IIJA, Executive Order 14005, and OMB M–24–02. The Department may, based on the results of that review, terminate the waiver, or take action to develop a new waiver in consultation with the MIAO. Without the waiver, DOT-assisted infrastructure projects located within the Pacific Island territories will experience challenges with product delivery, availability, reliability, and project scheduling. Infrastructure project schedules rely on readily available products delivered within reasonable timeframes. Due to the extreme distances that manufacturers for products produced in the mainland United States would have to ship products to the Pacific Island territories and due to the lack of existing local product supply networks for these products, manufacturers may not be able to assure on-time delivery of compliant products and associated projects. As a result, the Pacific Island territories could potentially face unreasonable scheduling uncertainty. Under OMB Memorandum M–24–02, agencies are expected to assess ‘‘whether a significant portion of any cost advantage of a foreign-sourced product is the result of the use of dumped steel, iron, or manufactured products or the use of injuriously subsidized steel, iron, or manufactured products’’ as appropriate before granting a public interest waiver. DOT’s analysis has concluded that this assessment is not applicable to this waiver. DOT will consider all comments received in the initial 15-day comment period during our consideration of the proposed waiver, as required by section 70914(c)(2) of IIJA. Comments received after this period, but before notice of our finding is published in the Federal Register, will be considered to the extent practicable. Pursuant to section 117 of the SAFETEA–LU Technical Corrections Act of 2008 (Pub. L. 110– 244, 122 Stat. 1572), if FHWA makes a finding that a waiver is appropriate under 23 U.S.C. 313(b), FHWA will also invite public comment on this finding for an additional 5 days following the date of publication of the finding. specific to that program would thus also apply to the Freely Associated States. E:\FR\FM\16DEN1.SGM 16DEN1 Federal Register / Vol. 89, No. 241 / Monday, December 16, 2024 / Notices Comments received during that period will be reviewed, but the finding will continue to remain valid. Those comments may influence DOT/FHWA’s decision to terminate or modify a finding. Issued in Washington, DC. Polly E. Trottenberg, Deputy Secretary. [FR Doc. 2024–29489 Filed 12–13–24; 8:45 am] BILLING CODE 4910–9X–P DEPARTMENT OF VETERANS AFFAIRS [OMB Control No. 2900–0674] Agency Information Collection Activity: Notice of Disagreement: Appeal to the Board of Veterans’ Appeals Board of Veterans’ Appeals, Department of Veterans Affairs. ACTION: Notice. AGENCY: The Board of Veterans’ Appeals (Board), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the Federal Register concerning each proposed collection of information, including each proposed extension of a currently approved collection, and allow 60 days for public comment in response to the notice. DATES: Comments must be received on or before February 14, 2025. ADDRESSES: Comments must be submitted through www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Program-Specific information: Sue Hamlin White, 202–632–5100, Edna.HamlinWhite@va.gov. VA PRA information: Maribel Aponte, 202–461–8900, vacopaperworkreduact@ va.gov. lotter on DSK11XQN23PROD with NOTICES1 SUMMARY: VerDate Sep<11>2014 17:41 Dec 13, 2024 Jkt 265001 Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA. With respect to the following collection of information, the Board invites comments on: (1) whether the proposed collection of information is necessary for the proper performance of the Board’s functions, including whether the information will have practical utility; (2) the accuracy of the Board’s estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology. Title: Notice of Disagreement (NOD)/ Appeal to the Board of Veterans’ Appeals, VA Form 10182 and VA Form 9. OMB Control Number: 2900–0674. https://www.reginfo.gov/public/do/ PRASearch (Once at this link, you can enter the OMB Control Number to find the historical versions of this Information Collection). Type of Review: Revision of a currently approved collection. Abstract: Appellate review of the denial of VA benefits may only be initiated by the filing of a Notice of Disagreement with the Board. 38 U.S.C. 7105(a). A VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) is required to initiate Board review of an appeal in the modernized review system as implemented by the Veterans Appeals Improvement and Modernization Act of 2017 (AMA). The VA Form 9 Appeal to the Board of Veterans’ Appeals may be SUPPLEMENTARY INFORMATION: PO 00000 Frm 00143 Fmt 4703 Sfmt 9990 101691 used to complete a legacy appeal to the Board. The completed form becomes the ‘‘substantive appeal’’ (or ‘‘formal appeal’’), which is required by the preAMA version of 38 U.S.C. 7105(a) and (d)(3) to complete an appeal to the Board. Additionally, the proposed information collections allow for withdrawal of services by a representative, requests for changes in hearing dates and methods under 38 U.S.C. 7107, and motions for reconsideration pursuant to 38 CFR 7103(a). The Board is requesting to revise the currently approved OMB Control No. 2900–0674 as there has been a decrease in the estimated number of respondents and annual burden. There has been a decrease in the use of the VA Form 9 Appeal to the Board of Veterans’ Appeals, as the VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) is required to initiate Board review of decisions issued on or after February 19, 2019. Consequently, the majority of incoming appeals at the Board are governed by the AMA; therefore, the estimated number of respondents who utilize the VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) has been adjusted accordingly. Affected Public: Individuals and households. Estimated Annual Burden: 60,305 hours. Estimated Average Burden per Respondent: 30 minutes. Frequency of Response: Once. Estimated Number of Respondents: 119,800. Authority: 44 U.S.C. 3501 et seq. Maribel Aponte, VA PRA Clearance Officer, Office of Enterprise and Integration/Data Governance Analytics, Department of Veterans Affairs. [FR Doc. 2024–29521 Filed 12–13–24; 8:45 am] BILLING CODE 8320–01–P E:\FR\FM\16DEN1.SGM 16DEN1

Agencies

[Federal Register Volume 89, Number 241 (Monday, December 16, 2024)]
[Notices]
[Pages 101688-101691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29489]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

[Docket No.: DOT-OST-2024-0129]


Notice of Proposed Waiver of Buy America Requirements for the 
Pacific Island Territories and the Freely Associated States

ACTION: Notice; request for comments.

-----------------------------------------------------------------------

SUMMARY: The Department of Transportation (DOT) is seeking comments on 
a proposed general applicability public interest waiver of the 
requirements of section 70914(a) of the Build America, Buy America Act 
(BABA) and related domestic preference statutes administered by DOT and 
its Operating Administrations (OAs) for Federal financial assistance 
awarded for infrastructure projects located in the Commonwealth of 
Northern Mariana Islands (CNMI), Guam, and American Samoa, collectively 
referred to as the Pacific Island territories. The proposed waiver 
would also apply to discretionary grant assistance provided by DOT to 
the Freely Associated States (the Republic of Palau, Republic of the 
Marshall Islands, and Federated States of Micronesia) in the Pacific 
that is subject to a domestic preference statute (which does not 
include BABA, as that statute only applies to the United States and its 
territories). The waiver will remain in effect for five years after the 
effective date of the final waiver.

DATES: Comments must be received by December 31, 2024.

ADDRESSES: Please submit your comments to the U.S. Government 
electronic docket site at https://www.regulations.gov, Docket: DOT-OST-
2024-0129.
    Note: All submissions received, including any personal information 
therein, will be posted without change or alteration to https://www.regulations.gov. For more information, you may review DOT's 
complete Privacy Act Statement published in the Federal Register on 
April 11, 2000 (65 FR 19477).

FOR FURTHER INFORMATION CONTACT: For questions about this notice, 
please contact Elizabeth Fox, DOT Office of the Assistant Secretary for 
Transportation Policy, at [email protected] or at 202-366-4540. For 
legal questions, please contact Jennifer Kirby-McLemore, DOT Office of 
the General Counsel, 405-446-6883, or via email at 
[email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The Buy America preferences set forth in section 70914(a) of BABA 
\1\ require that all iron, steel, manufactured products, and 
construction materials used for infrastructure projects in the United 
States under Federal financial assistance awards be produced in the 
United States.
---------------------------------------------------------------------------

    \1\ The Build America, Buy America Act was included as title XI, 
subtitle A of the Infrastructure Investment and Jobs Act (IIJA) 
(Pub. L. 117-58).
---------------------------------------------------------------------------

    Under section 70914(b) and in accordance with the Office of 
Management and Budget (OMB)'s Guidance Memorandum M-24-02, 
Implementation Guidance on Application of Buy America Preference in 
Federal Financial Assistance Programs for Infrastructure, DOT may waive 
the application of BABA requirements in any case in which it finds 
that: (i) applying the domestic content procurement preference would be 
inconsistent with the public interest; (ii) types of iron, steel, 
manufactured products, or construction materials are not produced in 
the U.S. in sufficient and reasonably available quantities or of a 
satisfactory quality; or (iii) the inclusion of iron, steel, 
manufactured products, or construction materials produced in the U.S. 
will increase the cost of the overall project by more than 25 percent.
    BABA also provides that the preferences under section 70914 apply

[[Page 101689]]

only to the extent that a domestic content procurement preference as 
described in section 70914 does not already apply to iron, steel, 
manufactured products, and construction materials. IIJA section 
70917(a)-(b). Federal financial assistance programs administered by 
DOT's Operating Administrations (OAs) \2\ are subject to a variety of 
mode-specific statutes that apply particular Buy America \3\ 
requirements to iron, steel, and manufactured products, including 49 
U.S.C. 50101 (FAA); 23 U.S.C. 313 (FHWA); 49 U.S.C. 5323(j) (FTA); and 
46 U.S.C. 54101(d)(2) (MARAD). Recent annual appropriations acts have 
also required DOT to apply the Buy American Act (41 U.S.C. chapter 83) 
to funds appropriated under those acts,\4\ where a mode-specific 
statute is not in place. These statutes also allow for waivers of the 
Buy America requirements to be issued when the Department determines 
that doing so is in the public interest.
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    \2\ DOT OAs that provide or administer financial assistance 
covered under this proposed waiver include the Federal Aviation 
Administration (FAA); Federal Highway Administration (FHWA); Federal 
Transit Administration (FTA); and the Maritime Administration 
(MARAD).
    \3\ In this notice, references to ``Buy America'' include 
domestic preference laws referred to ``Buy American'' that apply to 
DOT financial assistance programs.
    \4\ For example, section 409 of the Transportation, Housing and 
Urban Development, and Related Agencies Appropriations Act, 2024 
states that ``no funds appropriated pursuant to this Act may be 
expended by an entity unless the entity agrees that in expending the 
assistance the entity will comply with sections 2 through 4 of the 
Act of March 3, 1933 (41 U.S.C. 8301-8305, popularly known as the 
`Buy American Act').''
---------------------------------------------------------------------------

    DOT and its OAs provide financial assistance to the three Pacific 
Island territories of Guam, American Samoa, and CNMI through both 
discretionary grants and allocated programs, including assistance 
programs for highways and bridges, public transportation, airports, and 
port facilities. The Freely Associated States (the Republic of Palau, 
Republic of the Marshall Islands, and Federated States of Micronesia) 
in the Pacific region are also eligible recipients of discretionary 
grants under FAA's Airport Improvement Program (AIP).
    During FY 2024, DOT OAs provided more than $132.7 million in 
financial assistance for at least 20 capital projects in the Pacific 
Island territories under various programs where infrastructure is an 
eligible activity and may be subject to BABA or other DOT existing Buy 
America requirements. DOT also provided $47.6 million in AIP 
discretionary grants to the Freely Associated States in the Pacific 
region for 3 projects during that time.
    On April 29, 2024, DOT issued a temporary general applicability 
waiver of the requirements of section 70914(a) of BABA and related 
domestic preference statutes administered by DOT and its OAs. The DOT 
waiver was part of an interagency effort, led by the OMB, to provide 
time for DOT and other infrastructure agencies to collect and analyze 
evidence to determine if a long-term waiver of these requirements is in 
the public interest and allow time for DOT and its OAs to offer 
technical assistance to potential assistance recipients in the remote 
communities in the Pacific Island territories and Freely Associated 
States. The temporary waiver expires on March 1, 2025.
    During the temporary general applicability waiver period, DOT has 
worked with OMB's Made in America Office (MIAO) and with other 
infrastructure agencies to better understand the local manufacturing 
environment, consider how to best balance the equities for residents of 
the Pacific Island territories and domestic suppliers, and explore ways 
to potentially ease supply chain challenges for infrastructure projects 
in those territories. The Pacific Islands are over 5,000 miles from the 
mainland United States and must import products via air or sea. These 
economies have few local heavy manufacturers and largely rely on 
regional supply chains from east Asia, Australia, and New Zealand. Most 
goods, equipment, materials, and supplies are imported and rely on 
shipping with extended timelines and unpredictable shipping cost 
fluctuations. Moreover, materials sourced from the mainland U.S. lead 
to additional shipping fees and longer lead times, thus significantly 
extending construction activity schedules.
    Along with other Federal agencies, DOT has reviewed the U.S. 
International Trade Commission's 2023 report ``U.S.-Pacific Islands 
Trade and Investment: Impediments and Opportunities'', which noted the 
geographic isolation, high costs of shipping, dependence on imports, 
regulatory barriers, limited economies of scale, and environmental 
challenges as persistent barriers that the Pacific Island territories 
face. Additionally, the lack of available land on the Pacific Island 
territories creates barriers for developing new manufacturing and 
assembly facilities. Those infrastructure products readily available 
and produced locally on the Pacific Islands, such as aggregates and 
cement products, are mostly statutorily exempt from BABA requirements. 
For these reasons, the DOT remains concerned that complying with the 
domestic sourcing requirements may increase already elevated project 
time and costs.
    In considering this waiver, DOT consulted with the relevant Federal 
assistance programs in the respective OAs, including the regional 
offices in those agencies that directly administer DOT funding programs 
in the Pacific Island territories and Freely Associated States. DOT 
also relied on other communications that it has received from 
stakeholders in those territories. For example, CNMI and Guam have 
cited their isolated location in the Western Pacific and reliance on 
ocean freight as the only mode of transporting commodities to the 
island as creating significant challenges in obtaining materials from 
domestic sources, with impacts on both project costs and delivery 
schedules. The two territories have also indicated that shipping 
construction materials from the continental United States raises 
shipping costs by approximately 30 percent above the cost to ship 
directly to the islands from Asia.
    In August 2024, the U.S. Department of the Interior (DOI) hosted 
the third Territorial Climate and Infrastructure Workshop in Honolulu, 
HI, which included many representatives from various territorial 
agencies and departments. During the workshop, DOI and DOT led a 
session on the Build America, Buy America Act, during which many 
participants described the structural challenges the territories face 
in complying with Buy America requirements and the desire for relief 
due to the significant cost increases and delays in project timelines 
that would ensue. In addition, in February 2023, DOI hosted the 
Interagency Group on Insular Areas, at which the governors of the 
Territories expressed concerns related to BABA implementation and 
potential project delays and requested that Federal agencies be 
flexible in these requirements, including consideration of waivers.
    Additionally, representatives from American Samoa have indicated to 
the Federal Emergency Management Agency that ``As a containerized 
community, our territories depend on goods, equipment, materials, and 
supplies to be imported.'' They further stated that ``we can purchase 
equipment from foreign countries closer to American Samoa and with 
reasonable prices and shorter shipping time.'' American Samoa 
representatives also noted that availability of materials from nearby 
foreign countries such as New Zealand and Australia would result in a 
significant cost savings to the grantors.

[[Page 101690]]

Proposed Waiver and Request for Comments

    DOT is proposing to use its authority under section 70914(b)(1) to 
waive the Act's Buy America preferences for iron and steel, 
manufactured products, and construction materials used in 
infrastructure projects located within the Pacific Island territories 
of CNMI, Guam, or American Samoa and funded under DOT-administered 
financial assistance programs, on the basis that doing so would be in 
the public interest. The proposed waiver would apply to all awards 
obligated after the effective date and, in the case of awards obligated 
prior to the effective date, the proposed waiver would apply to all 
expenditures for non-domestic iron, steel, manufactured products, and 
construction materials incurred after the effective date. The proposed 
waiver would not apply to the following products that have been 
identified by OMB as critical supply chains that warrant special 
consideration:
     Telecommunications infrastructure:
    [cir] Telecommunications equipment used to transmit and receive 
digital signals across constructed networks (e.g., vaults, cabinets, 
routers, switches, optical line terminals (OLTs), optical network 
terminals (ONTs), wi-fi capable customer equipment, and other 
electronic hardware used to connect the network). This includes:
    [ssquf] Video surveillance equipment, including any equipment that 
is used in fixed and mobile networks that provides advanced 
communications service in the form of a video surveillance service, 
provided the equipment includes or uses electronic components. This 
encompasses any equipment that can be used in a fixed or mobile 
broadband network to enable users to originate and receive high quality 
voice, data, graphics, and video telecommunications using technology 
with connection speeds of at least 200 kbps in either direction.\5\
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    \5\ https://www.fcc.gov/laboratory-division/equipment-authorization-approval-guide/equipment-authorization-system#step2.
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    [ssquf] Broadcasting equipment, including radio frequency devices 
contained in electronic-electrical products that are capable of 
emitting radio frequency energy by radiation, conduction, or other 
means. These products have the potential to cause interference to radio 
services operating in the radio frequency range of 9 kHz to 3000 
GHz.\6\
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    \6\ https://www.fcc.gov/oet/ea/rfdevice.
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    [cir] Broadband equipment (e.g., fiber/coax cable, conduit, 
pedestals, handholes, tower structures, and other physical components 
used to connect to telecommunication equipment)
     Grid-connected utility-scale energy generation and 
stationary storage (>5MW)
     Cargo handling equipment, including cranes, that are 
manufactured by or contain any networks, operating systems, or software 
identified in U.S. Maritime Advisory 2024-0026 or successor advisories 
\7\
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    \7\ 2024-002-Worldwide-Foreign Adversarial Technological, 
Physical, and Cyber Influence https://www.maritime.dot.gov/msci/2024-002-worldwide-foreign-adversarial-technological-physical-and-cyber-influence.
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    While these items would be excluded from this general waiver, DOT 
recognizes that purchases of these items from non-domestic sources as 
part of a federally-assisted project may be warranted in certain 
circumstances. For those individual projects, DOT and its OAs will 
consider requests for potential waivers of BABA or other Buy America 
requirements on a case-by-case basis, with special attention to any 
strategic security issues that may be associated with those purchases.
    DOT specifically requests comment on the items that have been 
identified by OMB as critical supply chains that warrant special 
consideration and whether any of those items should be removed from the 
list, for example broadband equipment. If items are removed from this 
list following the public comment period, then those products would be 
included within the scope of the final waiver.
    Because many DOT-administered financial assistance programs are 
also subject to program-specific domestic preference requirements, the 
waiver proposed in this notice would also apply to those requirements. 
Specifically, the waiver would also be an exercise of DOT's authority 
to issue public interest waivers under 23 U.S.C. 313(b)(1), 49 U.S.C. 
5323(j), 46 U.S.C. 54101(d)(2)(B)(i)(I), 49 U.S.C. 50101(b)(1), and 41 
U.S.C. chapter 83. Under those DOT authorities, the proposed waiver 
would also apply to projects in the Freely Associated States (the 
Republic of Palau, Republic of the Marshall Islands, and Federated 
States of Micronesia).\8\
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    \8\ The proposed waiver under section 70914(b)(1) of BABA 
excludes projects in the Freely Associated States because the 
requirements under section 70914(a) are applicable only to 
infrastructure projects ``in the United States'' and, therefore, the 
BABA requirements to not apply to projects in the Freely Associated 
States. However, airports located in the Freely Associated States 
are eligible recipients under FAA's Airport Improvement Program, and 
the Buy American requirements specific to that program would thus 
also apply to the Freely Associated States.
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    The proposed duration of the waiver is five years after the 
effective date of the final waiver. The Department will periodically 
review this waiver to assess whether it remains necessary to the 
fulfillment of DOT's missions and goals and consistent with applicable 
legal authorities, such as the IIJA, Executive Order 14005, and OMB M-
24-02. The Department may, based on the results of that review, 
terminate the waiver, or take action to develop a new waiver in 
consultation with the MIAO.
    Without the waiver, DOT-assisted infrastructure projects located 
within the Pacific Island territories will experience challenges with 
product delivery, availability, reliability, and project scheduling. 
Infrastructure project schedules rely on readily available products 
delivered within reasonable timeframes. Due to the extreme distances 
that manufacturers for products produced in the mainland United States 
would have to ship products to the Pacific Island territories and due 
to the lack of existing local product supply networks for these 
products, manufacturers may not be able to assure on-time delivery of 
compliant products and associated projects. As a result, the Pacific 
Island territories could potentially face unreasonable scheduling 
uncertainty.
    Under OMB Memorandum M-24-02, agencies are expected to assess 
``whether a significant portion of any cost advantage of a foreign-
sourced product is the result of the use of dumped steel, iron, or 
manufactured products or the use of injuriously subsidized steel, iron, 
or manufactured products'' as appropriate before granting a public 
interest waiver. DOT's analysis has concluded that this assessment is 
not applicable to this waiver.
    DOT will consider all comments received in the initial 15-day 
comment period during our consideration of the proposed waiver, as 
required by section 70914(c)(2) of IIJA. Comments received after this 
period, but before notice of our finding is published in the Federal 
Register, will be considered to the extent practicable. Pursuant to 
section 117 of the SAFETEA-LU Technical Corrections Act of 2008 (Pub. 
L. 110-244, 122 Stat. 1572), if FHWA makes a finding that a waiver is 
appropriate under 23 U.S.C. 313(b), FHWA will also invite public 
comment on this finding for an additional 5 days following the date of 
publication of the finding.

[[Page 101691]]

Comments received during that period will be reviewed, but the finding 
will continue to remain valid. Those comments may influence DOT/FHWA's 
decision to terminate or modify a finding.

    Issued in Washington, DC.
Polly E. Trottenberg,
Deputy Secretary.
[FR Doc. 2024-29489 Filed 12-13-24; 8:45 am]
BILLING CODE 4910-9X-P
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