Buy America Waiver Notification |
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Gregory G. Nadeau
Federal Highway Administration
17 May 2016
[Federal Register Volume 81, Number 95 (Tuesday, May 17, 2016)]
[Notices]
[Pages 30601-30602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11579]
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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 34 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 May 18, 2016.
FOR FURTHER INFORMATION CONTACT: For questions about this notice,
please contact Mr. Gerald Yakowenko, FHWA Office of Program
Administration, telephone 202-366-1562, or via email at
gerald.yakowenko@dot.gov. For legal questions, please contact Ms.
Jennifer Mayo, FHWA Office of the Chief Counsel, 202-366-1523, or via
email at jennifer.mayo@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 Web site at http://www.archives.gov and the
Government Printing 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 34 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
2,528 vehicles and equipment acquisitions. The requests for the fourth
quarter of calendar year 2015, available at http://www.fhwa.dot.gov/construction/contracts/cmaq160317.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, section 635.410, Code of Federal Regulations (23 CFR
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
Further Continuing Appropriations Act of 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=119 on
March 17th. The FHWA received 11 comments in response to the
publication. Three commenters support granting the waiver and stated
that ``the vehicles represent an ideal way for domestic clean fuel to
be used and help air quality, economic security, and the regions.''
Five commenters opposed granting the waiver and three commenters
provided general comments suggesting that: (1) Buy America is supposed
to bring manufacturing jobs back home; (2) the list is very expansive
and appeared to be a list of products that are based on preference but
could not be purchased domestically; and (3) some of the Recreational
Trail items are specialized items available off the shelf. These
commenters did not provide a recommendation for domestic products that
fully comply with FHWA's Buy America requirements.
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, December 22,
[[Page 30602]]
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 34 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; PL 110-161; 23 CFR 635.410.
Issued on: May 9, 2016.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.
[FR Doc. 2016-11579 Filed 5-16-16; 8:45 am]
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