Buy America Waiver Notification Publication: Federal Register Agency: Federal Highway Administration Byline: Stephanie Pollack Date: 7 February 2022 Subjects: American Government , Roads & Highways

[Federal Register Volume 87, Number 25 (Monday, February 7, 2022)]
[Notices]
[Pages 6936-6938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02449]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration


Buy America Waiver Notification

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

ACTION: Notice.

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SUMMARY: This notice provides information regarding FHWA's finding that 
it is appropriate to grant a Buy America waiver to the Golden Gate 
Bridge, Highway & Transportation District (District) for procurement of 
foreign iron and steel components for the maintenance traveler system, 
which is needed to allow continued inspections and routine maintenance 
operations after the Golden Gate Bridge Physical Suicide Deterrent 
System Project (Project) is constructed. The non-domestic parts 
include: (i) Electric motors; (ii) speed reducers; (iii) wheel chocks; 
(iv) a chain stopper; (v) rail clamps with hydraulic power units; (vi) 
pneumatic brakes; (vii) air compressors; (viii) gas cylinder stands; 
(ix) bearings (of various types specified in the request); (x) electric 
cabinet switches and handles; (xi) electrical cabinet shafts; (xii) 
grounding shoes; and (xiii) scissor lifts.

DATES: The effective date of the waiver is February 8, 2022.

FOR FURTHER INFORMATION CONTACT: For questions about this notice, 
please contact Mr. Brian Hogge, FHWA Office of Infrastructure, 202-366-
1562, or via email at Brian.Hogge@dot.gov. For legal questions, please 
contact Mr. Patrick C. Smith, FHWA Office of the Chief Counsel, 202-
366-1345, or via email at Patrick.C.Smith@dot.gov. Office hours for 
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: www.FederalRegister.gov and the 
Government Publishing Office's database at: www.GovInfo.gov.

Background

    FHWA's Buy America regulation in 23 CFR 635.410 requires a domestic 
manufacturing process for any steel or iron products (including 
protective coatings) that are permanently incorporated in a Federal-aid 
construction project. The regulation also provides for a waiver of the 
Buy America requirements when the application would be inconsistent 
with the public interest or when satisfactory quality domestic steel 
and iron products are not produced in the United States in sufficient 
and reasonably available quantities. This notice provides information 
regarding FHWA's finding that it is appropriate to grant the District a 
Buy America waiver for procurement of foreign iron and steel components 
for the maintenance traveler system, which is needed to allow continued 
inspections and routine maintenance operations after the Project is 
constructed. The non-domestic parts include: (i) Electric motors; (ii) 
speed reducers; (iii) wheel chocks; (iv) a chain stopper; (v) rail 
clamps with hydraulic power units; (vi) pneumatic brakes; (vii) air 
compressors; (viii) gas cylinder stands; (ix) bearings (of various 
types specified in the request); (x) electric cabinet switches and 
handles; (xi) electrical cabinet shafts; (xii) grounding shoes; and 
(xiii) scissor lifts.
    Background on the Project: On average, 30 people die from suicide 
at the Golden Gate Bridge each year. Hundreds more are stopped by the 
District, the California Highway Patrol, or other intervention. The 
District determined that a physical barrier was needed to stop suicides 
from the bridge. The Project, Federal Aid Project No. BHLS-6003(051), 
involves the construction of a horizontal stainless-steel net supported 
by steel net supports for the full length of the bridge, except for a 
tall vertical railing installed in one location. The horizontal steel 
net system uses all American steel. The Project also includes the 
replacement of the bridge maintenance travelers with new travelers 
because the installation of the net will block the movement of the 
existing travelers. In this context, a ``traveler'' means a moveable 
inspection and maintenance platform, which travels on steel rails and 
trolley beams and is designed to provide access to the bridge. A new 
replacement traveler access system is necessary to allow continued 
inspections and routine maintenance operations after the Suicide 
Deterrent System is constructed. Some of the traveler equipment is not 
available with the required Buy America certification because it is not

[[Page 6937]]

manufactured in America or manufactured in America with some non-
domestic parts.
    The contract for the Project also encompasses the Golden Gate 
Bridge Wind Retrofit Project, Federal Aid Project No. BHLS-6003(052). 
The current construction contract amount for both projects is 
approximately $142.1 million (with $132.6 million for the Suicide 
Deterrent System Project and $9.5 million for the Wind Retrofit 
Project). The estimated value of the components under the requested 
waiver is approximately $2.6 million (or less than two percent of the 
total contract amount). The construction contract specifies that the 
Project is partially funded with Federal funds and that the FHWA Buy 
America provisions apply. For the Suicide Deterrent System Project, 
approximately 65 percent of the total Project cost is Federal, 4 
percent is from the State, and 31 percent is local. Under 23 U.S.C. 
313(g), FHWA's Buy America requirement applies to the entire scope of 
the project, as defined in the NEPA document, when Federal funds are 
used in any part of the project regardless of whether Federal funds are 
used in the actual component that is subject to the waiver.
    The traveler system is a ``contractor-designed'' element of this 
low-bid construction contract. As such, the fact that some of the 
requisite traveler equipment is not available with Buy America 
certifications was not identified until after the contract was awarded 
and the contractor completed the traveler design. Specifically, the new 
travelers will be propelled by electric drive systems that include some 
manufactured mechanical and electrical control components that are not 
available with the Buy America certification. The travelers must also 
be equipped with electric scissor lifts that are similarly not 
available with the Buy America certification.
    Background on Waiver Request: The District originally submitted a 
Buy America waiver request letter to FHWA on June 24, 2020. Prior to 
requesting a waiver, the District unsuccessfully attempted to identify 
domestic manufacturers for these products. The District reported to 
FHWA in the waiver request letter that the District, its contractor, 
and consultants contacted numerous manufacturers and distributors to 
identify products that complied with Buy America but were not 
successful in locating any domestic manufacturers or fabricators of the 
relevant products. Attachment 1 to the request letter provided a record 
of the District's efforts. The waiver request included the following 
non-domestic parts: (i) Electric motors; (ii) speed reducers; (iii) 
wheel chocks; (iv) a chain stopper; (v) rail clamps with hydraulic 
power units; (vi) pneumatic brakes; (vii) air compressors; (viii) gas 
cylinder stands; (ix) bearings (of various types specified in the 
request); (x) electric cabinet switches and handles; (xi) electrical 
cabinet shafts; (xii) grounding shoes; and (xiii) scissor lifts. 
Attachment 1 to the request letter provided further information on 
these parts.
    In accordance with the Consolidated Appropriations Act, 2021 (Pub. 
L. 116-260), FHWA published a notice seeking comment on whether a 
waiver was appropriate on its website, https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=157, on September 27, 2021.
    The FHWA received 14 comments in response to the publication. Eight 
commenters opposed the waiver, two supported it, and four of the 
comments documented the District's efforts to follow-up with one of the 
commenters opposing the waiver. Seven of the comments opposing the 
waiver did not offer any specific information on the availability of 
compliant products, nor did they suggest specific, additional actions 
that the District could take to maximize its use of goods, products, 
and materials produced in the United States. One commenter opposing the 
waiver indicated that he believed the parts were available from 
domestic suppliers but also did not name a specific manufacturer. This 
comment was submitted on September 28, 2021, and invited the District 
to contact the commenter for additional information on his statement. 
On October 4, 2021, the District responded to this commenter on the 
website requesting the names of United States manufacturers able to 
provide the relevant parts. On October 13, 2021, the District emailed 
this commenter at the email address he used to submit the comment 
asking the same. On October 25, 2021, the District posted a new comment 
to the website explaining that it had received no reply, either by 
email or phone, to its questions for this commenter. Thus, the District 
did not receive any new information indicating that the subject parts 
could be produced by domestic manufacturers from any of the commenters 
opposing the waiver.
    Although the District did not identify compliant components for the 
maintenance travelers, it provided information to FHWA supporting its 
waiver request, including information:
     Supporting the necessity of these specific maintenance 
travelers for allowing continued access to the bridge for performing 
inspections and maintenance operations after the suicide prevention 
nets are installed;
     Documenting efforts to locate compliant manufactured 
products;
     Demonstrating that alternative designs were infeasible; 
and
     Describing the effects of denying the request.
    Although ultimately unsuccessful, the District made substantial 
efforts to find suitable Buy America compliant components for the 
maintenance travelers.
    Timing and Need for a Waiver. The District maintains that approval 
of a Buy America waiver for the relevant components of the maintenance 
travelers is now critical to maintain the schedule of ongoing 
construction on the Project. The District explained in early 2021 that 
it was already at a juncture where delays in the approval of the Buy 
America waiver may delay completion of construction with commensurate 
additional payments to the contractor.
    Executive Order 14005. Executive Order 14005, ``Ensuring the Future 
is Made in All of America by All of America's Workers,'' provides that 
agencies should, consistent with applicable law, maximize the use of 
goods, products, and materials produced in, and services offered in, 
the United States. 86 FR 7475 (Jan. 28, 2021). Based on the information 
contained in the waiver request from the District and the lack of 
responsive comments following publication of a notice seeking comment 
on September 28, 2021, regarding available domestic manufacturers for 
the subject parts, FHWA concludes that issuing a waiver is consistent 
with Executive Order 14005.

Finding and Request for Comments

    Based on all the information available to the Agency, FHWA 
concludes that there are no Buy America-compliant relevant components 
for the maintenance travelers for the Project, specifically including: 
(i) Electric motors; (ii) speed reducers; (iii) wheel chocks; (iv) a 
chain stopper; (v) rail clamps with hydraulic power units; (vi) 
pneumatic brakes; (vii) air compressors; (viii) gas cylinder stands; 
(ix) bearings (of various types specified in the request); (x) electric 
cabinet switches and handles; (xi) electrical cabinet shafts; (xii) 
grounding shoes; and (xiii) scissor lifts. This finding only includes 
components identified in the waiver request and supporting documents 
included on FHWA's website.
    The District and its contractors and subcontractors involved in the 
procurement of the relevant components

[[Page 6938]]

are reminded of the need to comply with the Cargo Preference Act in 46 
CFR part 38, if applicable.
    In accordance with the provisions of Section 117 of the SAFETEA-LU 
Technical Corrections Act of 2008 (Pub. L. 110-244, 122 stat. 1572), 
FHWA is providing this notice as its finding that a waiver of Buy 
America requirements is appropriate. FHWA invites public comment on 
this finding for an additional five (5) days following the effective 
date of the finding. Comments may be submitted to FHWA's website via 
the link provided to the waiver page noted above.
    Authority: 23 U.S.C. 313; Pub. L. 110-244; Pub. L. 116-260; 23 CFR 
635.410.

Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.
[FR Doc. 2022-02449 Filed 2-4-22; 8:45 am]
BILLING CODE 4910-22-P