[Federal Register Volume 89, Number 156 (Tuesday, August 13, 2024)]
[Notices]
[Pages 65969-65971]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17993]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2024-0131]


Pipeline Safety: Proposed Waiver of the Build America, Buy 
America Act Requirements for Gas Service Risers and Gas Meters Under 
the NGDISM Program

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
Department of Transportation (DOT).

ACTION: Notice; request for comments.

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration 
(PHMSA), proposes to waive the Build America, Buy America (BABA) Act's 
domestic preference requirements for certain products widely used in 
natural gas distribution systems on the basis of nonavailability. The 
proposed duration of the waiver will apply to expenditures on or after 
the effective date of the final waiver for recipients of funding under 
the Natural Gas Distribution Infrastructure Safety and Modernization 
(NGDISM) Grant Program and would expire after three years. In 
accordance with Section 70914(c) of BABA, PHMSA is seeking public 
comments on the proposed waiver.

DATES: Comments must be received by August 28, 2024.

ADDRESSES: Please submit your comments to the Federal eRulemaking 
Portal at http://www.regulations.gov, Docket No. PHMSA-2024-0131, and 
follow the online instructions for submitting comments.
    Instructions: You must include the agency name and docket number at 
the beginning of your comments. Except as described below under the 
heading ``Confidential Business Information,'' all submissions 
received, including any personal information provided, will be posted 
without change or alteration to http://www.regulations.gov. For more 
information, you may review the U.S. Department of Transportation'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 Ms. Shakira Mack, Office of Pipeline Safety, 202-366-
5090, or via email at [email protected]. Office hours for PHMSA are 
from 8:30 a.m. to 5 p.m., E.T., Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    A copy of this Notice, all comments received on this Notice, and 
all background material may be viewed online at http://www.regulations.gov using the docket number listed above. Electronic 
retrieval help and guidelines are also available at http://www.regulations.gov. An electronic copy of this document also may be 
downloaded from the Office of the Federal Register's website at: 
www.FederalRegister.gov and the Government Publishing Office's website 
at: www.GovInfo.gov.

Confidential Business Information

    Confidential Business Information (CBI) is commercial or financial 
information that is both customarily and actually treated as private by 
its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), 
CBI is exempt from public disclosure. If your comments responsive to 
this notice contain commercial or financial information that is 
customarily treated as private, that you actually treat as private, and 
that is relevant or responsive to this notice, it is important that you 
clearly designate the submitted comments as CBI. You may ask PHMSA to 
give confidential treatment to information you give to the agency by

[[Page 65970]]

taking the following steps: (1) mark each page of the original document 
submission containing CBI as ``Confidential''; (2) send PHMSA, along 
with the original document, a second copy of the original document with 
the CBI deleted; and (3) explain why the information you are submitting 
is CBI. Unless you are notified otherwise, PHMSA will treat such marked 
submissions as confidential under the FOIA, and they will not be placed 
in the public docket of this Notice. Submissions containing CBI should 
be sent to: Ms. Shakira Mack, PHMSA, 1200 New Jersey Avenue SE, 
Washington, DC 20590. Any comment submissions that PHMSA receives that 
are not specifically designated as CBI will be placed in the public 
docket for this matter.

Background

    The NGDISM program was authorized by the Infrastructure Investment 
and Jobs Act (IIJA) (Pub. L. 117-58). The program provides Federal 
funding to municipal- or community-owned natural gas utilities (not 
including for-profit entities) to repair, rehabilitate, or replace 
their natural gas distribution pipeline systems or portions thereof, or 
to acquire equipment to (1) reduce incidents and fatalities and (2) 
avoid economic losses. The IIJA appropriates $200 million per year for 
each of Fiscal Years (FY) 2022 through 2026 for the NGDISM program ($1 
billion in total). The IIJA provides that 2 percent of this amount 
shall be used to pay the administrative expenses of the NGDISM program. 
Accordingly, the total amount expected to be awarded as grant funding 
over the five-year period is approximately $980,000,000. In FY22, PHMSA 
awarded approximately $196 million to 37 municipal- and community-owned 
natural gas utilities across the nation to fund pipeline replacement 
projects and the purchase of leak-detection equipment.
    Congress also enacted the Build America, Buy America Act (BABA), 
providing that ``none of the funds made available for a Federal 
financial assistance program for infrastructure . . . may be obligated 
for a project unless all of the iron, steel, manufactured products, and 
construction materials used in the project are produced in the United 
States.'' IIJA, Public Law 117-58, Sec.  70914(a). Under IIJA Section 
70914(b), PHMSA has authority to waive the requirements of BABA (1) if 
a domestic product is unavailable, (2) if using a domestic product 
would present an unreasonable cost, or (3) if application of BABA would 
not be in the public interest.
    In January 2024, PHMSA was contacted by several FY22 NGDISM 
recipients who requested waivers for certain products on the basis of 
nonavailability and submitted the results of their independent market 
research to PHMSA. The products requested to be waived included gas 
service risers and gas meters. PHMSA considers these products to be 
either ``iron or steel products'' or ``manufactured products'' under 
BABA depending on the cost of the iron and steel components 
incorporated in each product. See 2 CFR 184.3. A more detailed 
description of each product is provided below:
     Gas Service Risers: Service risers are sections of pipe 
that provide a 90-degree connection between underground gas service 
lines and aboveground meter assemblies. Risers are made primarily of 
steel but typically also include polyethylene components, and may 
include a protective sleeve over the polyethylene components. Service 
risers are manufactured in a variety of sizes, and may be rigid or 
flexible. PHMSA proposes to waive BABA requirements for field assembly 
risers and service head adapter risers.
     Gas Meters: Gas meters are placed outside of a residence 
or business that utilizes natural gas and allows the utility operator 
to track how much gas is being used by the residence or business. Gas 
meters incorporate a variety of components made of different materials, 
but are typically made primarily of aluminum. ``Smart'' meters are not 
typically used in the gas industry. Instead, gas meters are commonly 
paired with automated meter reading technology (AMR) that uses radio 
waves to transmit gas usage data. Accordingly, gas meters are typically 
not capable of connecting to the internet. PHMSA proposes to waive BABA 
requirements for both smaller-volume meters designed for residential 
use and larger-volume meters designed for use on commercial 
establishments.

Justification for the Waiver

    PHMSA has preliminarily determined that these products are not 
manufactured in the United States in sufficient and reasonably 
available quantities or of a satisfactory quality. To support this 
determination, PHMSA evaluated the market research performed by the 
NGDISM grant recipients who requested the waiver. PHMSA also conducted 
its own market research on the products identified by NGDISM grant 
recipients. The market research performed by the NGDISM grant 
recipients consisted of engaging the supplier scouting services of the 
National Institute of Standards and Technology's Manufacturing 
Extension Partnership (NIST-MEP), publicizing Invitations for Bids that 
included terms requiring bidders to certify compliance with BABA, and 
individually contacting known suppliers and vendors to identify 
potential sources of BABA-compliant products. PHMSA thereafter 
conducted its own supplier scouting through NIST MEP and independently 
engaged with industry to confirm the findings of the NGDISM grant 
recipients. At the conclusion of this process, PHMSA identified a 
company who could produce BABA-compliant versions of certain types of 
gas risers. Specifically, the company PHMSA identified currently 
produces standard ``anodeless service risers'' that meet the 
requirements of BABA but could not produce the ``field assembly 
risers'' or ``service head adapter risers'' that are sometimes used in 
lieu of standard risers, and that are needed by some NGDISM recipients. 
Accordingly, PHMSA narrowed the scope of its proposed waiver to exclude 
standard anodeless service risers.
    The FY22 NGDISM recipients also requested a nonavailability waiver 
for service regulators. Service regulators are devices incorporated 
into a meter assembly designed to allow gas from a higher-pressure 
service line to enter a residence's or business's gas lines at a lower 
pressure ideal for everyday use. During its market research, PHMSA 
identified a single company that currently produces BABA-compliant 
service regulators and accordingly removed service regulators from the 
scope of this proposed waiver, as PHMSA's market research did not 
support a clear finding of nonavailability. However, some NGDISM 
recipients have expressed concern about whether a single company would 
be able to supply regulators needed by all NGDISM award recipients. 
PHMSA has engaged with the company to determine its production capacity 
for service regulators, but PHMSA lacks information on the anticipated 
demand for service regulators during the life of the NGDISM program. A 
lack of sufficient supply could unduly delay the safety-critical 
construction projects funded by the NGDISM program; thus, PHMSA is 
specifically requesting comments from industry on the demand for 
service regulators purchased through the NGDISM program to inform its 
future consideration of any potential

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waivers of BABA requirements for service regulators.

Proposed Waiver and Request for Comments

    The products covered by this proposed waiver are essential products 
used in every natural gas distribution system. Accordingly, nearly 
every NGDISM project that includes infrastructure expenditures will 
have a need for these products. Without these products, most NGDISM 
projects would not be able to be completed safely and successfully.
    PHMSA does not anticipate that this proposed waiver would have a 
material impact on domestic manufacturing capabilities for these 
products. The NGDISM program is authorized to fund $196 million of 
pipeline replacements per year over five years, which PHMSA believes 
represents a small fraction of the total market for pipeline 
replacement construction projects in the United States. For example, in 
the first year of the NGDISM program, PHMSA received grant applications 
requesting over $1 billion in total funding combined. This suggests 
that only a fraction of the overall market for these products will be 
funded by the NGDISM program, and thus only a small fraction will be 
subject to BABA requirements even in the absence of this waiver.
    The products proposed to be waived will also constitute a small 
percentage of total infrastructure spending under the NGDISM program. 
Although the data currently available to PHMSA are incomplete, PHMSA 
anticipates that only approximately $56 million of the $196 million 
awarded per year will be spent directly on materials for pipeline 
infrastructure. PHMSA further estimates that of this amount, less than 
approximately $1.9 million per year will be spent on the products 
proposed to be covered under this waiver across all recipients. 
Accordingly, PHMSA believes that the purchasing power of the NGDISM 
program is simply not great enough to incentivize the market to begin 
domestic production of these parts in large enough quantities to meet 
the needs of NGDISM award recipients before the program is slated to 
end in FY26.
    For similar reasons, PHMSA proposes to waive BABA requirements for 
these gas service risers and gas meters for expenditures made in a 
period of three years following publication of a Notice of Final 
Waiver.
    In addition, the proposed BABA waiver would not affect recipient 
compliance with any other requirements of the NGDISM program, including 
requirements to ensure the security and resilience of critical 
infrastructure, requirements to perform a site-specific environmental 
assessment pursuant to the National Environmental Policy Act, or 
requirements to comply with Executive Orders applicable to Federal 
financial assistance programs.
    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. PHMSA's analysis has concluded that this assessment is 
not applicable to this waiver, as it is being proposed on the basis of 
nonavailability, rather than public interest or unreasonable cost.
    PHMSA 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 the 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. PHMSA 
is specifically requesting comments on the demand for service 
regulators purchased through the NGDISM program to evaluate whether a 
waiver of BABA requirements for service regulators is warranted.

    Issued in Washington, DC, on August 7, 2024, under authority 
delegated in 49 CFR 1.97.
Tristan H. Brown,
Deputy Administrator.
[FR Doc. 2024-17993 Filed 8-12-24; 8:45 am]
BILLING CODE 4910-60-P