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Buy America Waiver Notification

American Government Special Collections Reference Desk

American Government Topics:  Interstate Highway System

Buy America Waiver Notification

Brandye L. Hendrickson
Environmental Protection Agency
6 October 2017


[Federal Register Volume 82, Number 193 (Friday, October 6, 2017)]
[Notices]
[Pages 46882-46883]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21567]


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

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration


Buy America Waiver Notification

AGENCY: Federal Highway Administration (FHWA), Department of 
Transportation (DOT).

ACTION: Notice.

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

SUMMARY: This notice provides information regarding FHWA's finding that 
a Buy America waiver is appropriate for the obligation of Federal-aid 
funds for 4 California projects involving the acquisition of vehicles 
under the Congestion Mitigation and Air Quality Improvement program on 
the condition that they be assembled in the U.S., on the basis that 
there are no domestic manufacturers that produce the vehicles 
identified in this notice in such a way that all their steel and iron 
elements are manufactured domestically.

DATES: The effective date of the waiver is October 10, 2017.

FOR FURTHER INFORMATION CONTACT: For questions about this notice, 
please contact Mr. Gerald Yakowenko, FHWA Office of Program 
Administration, 202-366-1562, or via email at Gerald.Yakowenko@dot.gov. 
For legal questions, please contact Mr. Jomar Maldonado, FHWA Office of 
the Chief Counsel, 202-366-1373, or via email at 
Jomar.Maldonado@dot.gov. Office hours for the FHWA are from 8:00 a.m. 
to 4:30 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access

    An electronic copy of this document may be downloaded from the 
Federal Register's home page at http://www.archives.gov and the 
Government Publishing Office's database.

Background

    This notice provides information regarding FHWA's finding that a 
Buy America waiver is appropriate for the obligation of Federal-aid 
funds for 4 California projects involving the acquisition of vehicles 
under the Congestion Mitigation and Air Quality Improvement (CMAQ) 
program. The waiver would apply to approximately 29 vehicle 
acquisitions on the condition that they be assembled in the United 
States. These involve 17 compressed natural gas solid waste trucks for 
the City of Visalia (CMLNI-5044(117)), 1 propane powered school bus for 
the City of Visalia (CMLNI-5044(119)), 6 diesel refuse trucks for the 
City of Tulare (CMLNI-5072(061)), and 5 compressed natural gas refuse 
trucks for the City of Porterville (CMLNI-5122(086)).
    Title 23, Code of Federal Regulations (CFR), section 635.410 
requires that steel or iron materials (including protective coatings) 
that will be permanently incorporated in a Federal-aid project must be 
domestically manufactured. For FHWA, this means that all the processes 
that modified the chemical content, physical shape or size, or final 
finish of the material (from initial melting and mixing, continuing 
through the bending and coating) occurred in the United States. The 
statute and regulations create a process for granting waivers from the 
Buy America requirements when its application would be inconsistent 
with the public interest or when satisfactory quality domestic steel 
and iron products are not sufficiently available. In 1983, FHWA 
determined that it was both in the public interest and consistent with 
the legislative intent to waive Buy America for manufactured products 
other than steel manufactured products. However, FHWA's national waiver 
for manufactured products does not apply to the requests in this notice 
because they involve predominately steel and iron manufactured 
products. The FHWA's Buy America requirements do not have special 
provisions for applying Buy America to ``rolling stock'' such as 
vehicles or vehicle components (see 49 U.S.C. 5323(j)(2)(C), 49 CFR 
661.11, and 49 U.S.C. 24405(a)(2)(C) for examples of Buy America 
rolling stock provisions for other DOT agencies).
    Based on all the information available to the agency, FHWA 
concludes that there are no manufacturers that produce the vehicles 
identified in this notice in such a way that all their steel and iron 
elements are manufactured domestically. The FHWA's Buy America

[[Page 46883]]

requirements were tailored to the types of products that are typically 
used in highway construction, which generally meet the requirement that 
steel and iron materials be manufactured domestically. In today's 
global industry, vehicles are assembled with iron and steel components 
that are manufactured all over the world. The FHWA is not aware of any 
domestically produced vehicle on the market that meets FHWA's Buy 
America requirement to have all its iron and steel be manufactured 
exclusively in the United States. For example, the Chevrolet Volt, 
which was identified by many commenters in a November 21, 2011, Federal 
Register Notice (76 FR 72027) as a car that is made in the United 
States, is comprised of only 45 percent of United States and Canadian 
content according to the National Highway Traffic Safety 
Administration's Part 583 American Automobile Labeling Act Report Web 
page at http://www.nhtsa.gov/Laws+&+Regulations/Part+583+American+Automobile+Labeling+Act+(AALA)+Reports. Moreover, 
there is no indication of how much of this 45 percent content is 
domestically manufactured (from initial melting and mixing) iron and 
steel content.
    Consistent with the Consolidated Appropriations Act of 2017 (Pub. 
L. 115-31), FHWA published two notices seeking comments whether a 
waiver is appropriate on its Web site, https://www.fhwa.dot.gov/construction/contracts/cmaq170321.cfm and https://www.fhwa.dot.gov/construction/contracts/cmaq170725.cfm. The FHWA received no comments in 
response to the publication. Based on FHWA's conclusion that there are 
no domestic manufacturers that can produce the vehicles identified in 
this notice in such a way that all their steel and iron materials are 
manufactured domestically, FHWA finds that a waiver of FHWA's Buy 
America requirements is appropriate under the non-availability criteria 
(23 U.S.C. 313(b)(2) and 23 CFR 635.410(c)(2)(ii)). However, FHWA 
believes that it is consistent with the Buy America requirements to 
impose the condition that the vehicles and the vehicle components be 
assembled in the United States. Requiring final assembly to be 
performed in the United States is consistent with past guidance to FHWA 
Division Offices on manufactured products (see Memorandum on Buy 
America Policy Response, Dec. 22, 1997, http://www.fhwa.dot.gov/programadmin/contracts/122297.cfm). A waiver of the Buy America 
requirement without any regard to where the vehicle is assembled would 
diminish the purpose of the Buy America requirement. Moreover, in 
today's economic environment, the Buy America requirement is especially 
significant in that it will ensure that Federal-aid funds are used to 
support and create domestic jobs. This approach is similar to the 
conditional waivers previously given for various vehicle projects. 
Thus, so long as the final assembly of the 29 vehicles occurs in the 
United States, applicants to this waiver request may proceed to 
purchase these vehicles consistent with the Buy America requirement.
    In accordance with the provisions of section 117 of the ``Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users, Technical Corrections Act of 2008'' (Pub. L. 110-244), FHWA 
is providing this notice of its finding that a non-availability waiver 
of Buy America requirements is appropriate on the condition that the 
vehicles identified in the notice are assembled domestically. The FHWA 
invites public comment on this finding for an additional 15 days 
following the effective date of the finding. Comments may be submitted 
to FHWA's Web site via the link provided to the waiver page noted 
above.

    Authority:  23 U.S.C. 313; Pub. L. 110-161, 23 CFR 635.410

    Issued on: October 2, 2017.
Brandye L. Hendrickson,
Acting Administrator, Federal Highway Administration.
[FR Doc. 2017-21567 Filed 10-5-17; 8:45 am]
 BILLING CODE 4910-22-P

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