Buy America Waiver Notification |
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Victor M. Mendez
Federal Highway Administration
December 30, 2013
[Federal Register Volume 78, Number 250 (Monday, December 30, 2013)]
[Notices]
[Pages 79560-79561]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-31236]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Buy America Waiver Notification
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice.
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SUMMARY: This notice provides information regarding the FHWA's finding
that a partial Buy America waiver is appropriate for the obligation of
Federal-aid funds for 112 State requests regarding specific vehicle
projects (including sedans, vans, pickups, SUVs, trucks, buses, and
equipment, such as backhoes, street sweepers, tractors and low emission
locomotives), including projects to retrofit vehicles with individual
vehicle components, so long as they are assembled in the United States.
The FHWA's Buy America requirements provide that 100 percent of all
steel and iron comprising a predominantly steel and iron product that
is permanently incorporated into a project must be domestically
manufactured. With respect to vehicles, manufacturers typically
assemble these products with many different components and
subcomponents containing steel and iron. As a result, vehicles are
typically referred to as being made where the final product rolls off
the assembly line for delivery into the marketplace. The FHWA is
unaware of any vehicle that is comprised of 100 percent domestically
produced steel and iron, resulting in a need for a partial Buy America
waiver for these projects to proceed.
DATES: The effective date of the waiver is December 31, 2013.
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.
Michael Harkins, FHWA Office of the Chief Counsel, (202) 366-4928, or
via email at michael.harkins@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 Printing Office's database at: http://www.access.gpo.gov/nara.
Background
The FHWA's Buy America requirements at 23 U.S.C. 313 require a
domestic manufacturing process for any steel or iron products
(including protective coatings) that are permanently incorporated in a
Federal-aid project. The statute 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 sufficiently available. This notice provides
information regarding the FHWA's finding that a partial Buy America
waiver is appropriate for the obligation of Federal-aid funds for the
purchase of 112 State requests regarding specific vehicle projects
(including sedans, vans, pickups, SUVs, trucks, buses, and equipment,
such as backhoes, street sweepers, and tractors and low emission
locomotives).\1\
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\1\ See http://www.fhwa.dot.gov/construction/contracts/cmaq131115.cfm
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In accordance with Division A, section 122 of the ``Consolidated
and Further Continuing Appropriations Act, 2012'' (Pub. L. 112-284),
the FHWA published a notice of intent to issue a waiver on its Web site
for 112 State requests regarding specific vehicle projects (including
sedans, vans, pickups, SUVs, trucks, buses, and equipment, such as
backhoes, street sweepers, and tractors) (http://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=93) on November 15th. The FHWA
received 20 comments in response to the publication. No commenter
objected to the waiver, and one commenter expressed concern regarding
FHWA's current process of approving a waiver for vehicle retrofit
projects under the Congestion Mitigation Air Quality (CMAQ) Improvement
Program. This commenter suggested that FHWA should make all diesel
retrofit devices and components exempt from the Buy America
requirements.
The FHWA appreciates the need to provide clear guidance concerning
the application of Buy America requirements to vehicles and diesel
engine retrofit projects; however, the issuance of guidance for that
subject is outside of the scope of this Notice. The FHWA issued a
Federal Register Notice and Request for Comment on various aspects of
the Buy America requirements on July 10, 2013. The FHWA is currently
evaluating all comments and assessing the need for additional guidance
or clarification.
Based on all the information available to the agency, the FHWA
concludes that
[[Page 79561]]
there are no domestic manufacturers that could meet a 100 percent
domestic steel and iron content for the 112 State requests regarding
specific vehicle projects (including sedans, vans, pickups, SUVs,
trucks, buses, and equipment, such as backhoes, street sweepers, and
tractors and low emission locomotives).
The FHWA's Buy America requirement was initially established in
1983 when the acquisition of vehicles was not eligible for assistance
under the Federal-aid highway program. As such, the FHWA's Buy America
requirements were tailored to the types of products that are typically
used in highway construction, which generally meet a 100 percent
domestic steel and iron content requirement. Vehicles were not the
types of products that were initially envisioned as being purchased
with Federal-aid highway funds when Buy America was first enacted. In
today's global industry, vehicles are assembled with components that
are made all over the world. The FHWA is not aware of any vehicle on
the market that can claim to incorporate 100 percent domestic steel and
iron content. For instance, the Chevy Volt, which was identified by
many commenters in a November 21, 2011, Federal Register Notice (76 FR
72027) as being a car that is made in the United States, comprises only
40 percent United States and Canada content according to the window
sticker (http://www.cheersandgears.com/uploads/1298005091/med_gallery_51_113_449569.png). There is no indication of how much of
this 40 percent United States/Canadian content is United States-made
content. However, there is an indication on the window sticker
concerning whether the Volt was assembled in the United States.
While the manufacture of steel and iron products that are typically
used in highway construction (such as pipe, rebar, struts, and beams)
generally refers to the various processes that go into actually making
the entire product, the manufacture of vehicles typically refers to
where the vehicle is assembled. Thus, given the inherent differences in
the types of products that are typically used in highway construction
and vehicles, we feel that simply waiving the Buy America requirement,
which is based on the domestic content of the product, 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 Highway Trust Fund (HTF) dollars are used to
support and create jobs in the United States.
While the FHWA has not located a vehicle that meets a 100 percent
domestic iron and steel content requirement, the FHWA does not find
that a complete waiver based on non-availability pursuant to 23 U.S.C.
313(b)(2) is appropriate. However, the FHWA also recognizes that at
least a partial waiver is necessary in order to permit the State DOTs
to proceed with the projects. The FHWA believes that a partial waiver
that allows the public agencies to purchase vehicles so long as the
final assembly of the vehicle as the end product occurs in the United
States is appropriate. This approach is similar to the partial waivers
previously given for various vehicle projects.
In conclusion, and in light of the above, pursuant to 23 U.S.C.
313(b)(1), the FHWA finds that it is in the public interest to grant a
partial waiver from the general 100 percent domestic content
requirement that applies to Federal-aid highway projects under Buy
America. Under this partial waiver, however, the final assembly of any
vehicles purchased with HTF funds must occur in the United States.
Thus, so long as the final assembly of the 112 vehicle projects
(including sedans, vans, pickups, SUVs, trucks, buses, and equipment,
such as backhoes, street sweepers, and tractors) occurs in the United
States, applicants to this waiver request may proceed to purchase these
vehicles and equipment consistent with the Buy America requirement.
In accordance with the provisions of section 117 of the SAFETEA-LU
Technical Corrections Act of 2008 (Pub. L. 110-244, 122 Stat. 1572),
the FHWA is providing this notice as its finding that a partial waiver
of Buy America requirements is appropriate. 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 the FHWA's
Web site via the link provided to the waiver page noted above.
Authority: (Authority: 23 U.S.C. 313; Pub. L. 110-161, 23 CFR
635.410)
Issued on: December 23, 2013.
Victor M. Mendez,
Administrator.
[FR Doc. 2013-31236 Filed 12-27-13; 8:45 am]
BILLING CODE 4910-22-P