Buy America Waiver Notification |
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Victor M. Mendez
Federal Highway Administration
November 25, 2013
[Federal Register Volume 78, Number 227 (Monday, November 25, 2013)]
[Notices]
[Pages 70395-70396]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-28186]
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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 Congestion Mitigation and Air Quality (CMAQ) Improvement
Program funds for the purchase of 378--light, medium, and heavy duty
plug-in battery electric and compressed natural gas vehicles by Chicago
DOT.
DATES: The effective date of the waiver is November 26, 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 policy 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 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 CMAQ program
funds for the purchase of 378--light, medium, and heavy duty plug-in
battery electric and compressed natural gas vehicles by Chicago DOT.
In accordance with Division A, section 122 of the ``Consolidated
and Further Continuing Appropriations Act, 2012'' (Pub. L. 112-55), the
FHWA published a notice of intent to issue a waiver on its Web site for
the 378--light, medium, and heavy duty plug-in battery electric and
compressed natural gas vehicles (http://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=92) on September 5, 2013. The FHWA received no
comments in response to the publication.
During the 15-day comment period, the FHWA conducted additional
review but was unable to locate a domestic manufacturer that could meet
a 100 percent domestic steel and iron content requirement. Based on all
the information available to the Agency, the FHWA concludes that there
are no domestic manufacturers that could meet a 100 percent domestic
steel and iron content for light, medium, and heavy duty plug-in
battery electric and compressed natural gas vehicles.
The FHWA has reevaluated the applicability of the Buy America
requirement as it may apply to the purchase of the vehicles. 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, however, are 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 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. Thus, the
FHWA does not believe that application of a domestic content standard
should be applied to the purchase of vehicles. However, the FHWA
believes that the vehicles should be assembled in the United States.
Whenever a person discusses the manufacture of vehicles, the discussion
typically refers to where the final assembly takes place. For instance,
under a previous proposed waiver notification and comment process,
several commenters urged that the waiver be denied because the Chevy
Volt is made in the United States, the FHWA interprets these comments
as referring to the assembly of the vehicle in Detroit since the Volt
window sticker says that the United States/Canada parts content of the
vehicle is only 40 percent. 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 type 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.
Therefore, 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 Chicago
DOT to proceed with its project. The FHWA believes that a partial
waiver that allows the Chicago
[[Page 70396]]
DOT to purchase the 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 conditional waivers given to Alameda
County, San Francisco County, and Merced County, CA, for vehicle
purchases on November 21, 2011 (76 FR 72027 and 76 FR 72028) and March
30, 2012 (77 FR 19410) as well as one provided for a group of similar
purchases in multiple States on June 17, 2013 (78 FR 36296).
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 CMAQ funds must occur in the United States.
Thus, so long as the final assembly of the light, medium, and heavy
duty plug-in battery electric and compressed natural gas vehicles
occurs in the United States, Chicago DOT may proceed to purchase these
vehicles 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 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 Chicago DOT waiver page noted above.
Authority: 23 U.S.C. 313; Pub. L. 110-161, 23 CFR 635.410).
Issued on: November 18, 2013.
Victor M. Mendez,
Administrator.
[FR Doc. 2013-28186 Filed 11-22-13; 8:45 am]
BILLING CODE 4910-22-P