Buy America Waiver Notification |
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Gregory G. Nadeau
Federal Highway Administration
5 April 2016
[Federal Register Volume 81, Number 65 (Tuesday, April 5, 2016)]
[Notices]
[Pages 19701-19702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07800]
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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
a Buy America waiver is appropriate for the obligation of Federal-aid
funds for 48 State projects involving the acquisition of vehicles and
equipment on the condition that they be assembled in the U.S.
DATES: The effective date of the waiver is April 6, 2016.
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 at http://www.access.gpo.gov/nara.
Background
This notice provides information regarding FHWA's finding that a
Buy America waiver is appropriate for the obligation of Federal-aid
funds for 48 State projects involving the acquisition of vehicles
(including sedans, vans, pickups, trucks, buses, and street sweepers)
and equipment (such as trail grooming equipment) on the condition that
they be assembled in the U.S. The waiver would apply to approximately
393 vehicles and equipment acquisitions. The requests for the third
quarter of calendar year 2015, available at http://www.fhwa.dot.gov/construction/contracts/cmaq160105.cfm, are incorporated by reference
into this notice. These projects are being undertaken to implement air
quality improvement, safety, and mobility goals under FHWA's Congestion
Mitigation and Air Quality Improvement Program and the Recreational
Trails Program.
Title 23, Code of Federal Regulations, section 635.410 requires
that steel or iron materials (including protective coatings) that will
be permanently incorporated in a Federal-aid project must be
manufactured in the U.S. 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 U.S. 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 domestic manufacturers that produce the
vehicles and vehicle components identified in this notice in such a way
that their steel and iron elements are manufactured domestically. The
FHWA's Buy America 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 U.S. 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 U.S., is comprised of only 45 percent of U.S. and Canadian
content according to the National Highway Traffic Safety
Administration's Part 583 American Automobile Labeling Act Report Web
page (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 U.S.-
manufactured (from initial melting and mixing) iron and steel content.
In accordance with Division K, section 122 of the ``Consolidated
and
[[Page 19702]]
Further Continuing Appropriations Act, 2015'' (Pub. L. 113-235), FHWA
published a notice of intent to issue a waiver on its Web site at
http://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=117 on
January 5, 2016. The FHWA received five comments in response to the
publication. Four commenters suggested that preference should be given
to American products in support of American workers and a waiver should
only be granted if there are no domestic products available. These
commenters did not provide a recommendation for domestic products that
fully comply with FHWA's Buy America requirements. The fifth commenter
supports granting a waiver and agreed that domestic assembly for the
vehicles seems to be the only course to follow.
Based on FHWA's conclusion that there are no domestic manufacturers
that can produce the vehicles and equipment identified in this notice
in such a way that steel and iron materials are manufactured
domestically, and after consideration of the comments received, FHWA
finds that application of FHWA's Buy America requirements to these
products is inconsistent with the public interest (23 U.S.C. 313(b)(1)
and 23 CFR 635.410(c)(2)(i)). However, FHWA believes that it is in the
public interest and consistent with the Buy America requirements to
impose the condition that the vehicles and the vehicle components be
assembled in the U.S. Requiring final assembly to be performed in the
U.S. 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 Highway Trust Fund dollars are used to support and create
jobs in the U.S. This approach is similar to the conditional waivers
previously given for various vehicle projects. Thus, so long as the
final assembly of the 48 State projects occurs in the U.S., 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 ``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 public interest waiver
of Buy America requirements is appropriate on the condition that the
vehicles and equipment identified in the notice be assembled in the
U.S. 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: March 29, 2016.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.
[FR Doc. 2016-07800 Filed 4-4-16; 8:45 am]
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