Buy America Waiver Notification |
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Brandye L. Hendrickson
Federal Highway Administration
16 April 2018
[Federal Register Volume 83, Number 73 (Monday, April 16, 2018)]
[Notices]
[Pages 16421-16422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-07901]
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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 issuance of
a Buy America waiver for the obligation of Federal-aid funds for 151
State projects involving the acquisition of vehicles and equipment on
the condition that they be assembled in the U.S.
DATES: The waiver is issued as of April 17, 2018.
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 decision to issue
a Buy America waiver for the obligation of Federal-aid funds for 151
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 United States. The waiver would apply to approximately 955 vehicle
and equipment acquisitions. The requests for vehicle-related waivers
received between April 2016 and December 2016 are incorporated by
reference into this notice. These requests are available on FHWA's Buy
America website at the following locations:
April to June, 2016: https://www.fhwa.dot.gov/construction/contracts/cmaq161207.cfm;
July to September, 2016: https://www.fhwa.dot.gov/construction/contracts/cmaq170321.cfm; and
October to December, 2016: https://www.fhwa.dot.gov/construction/contracts/cmaq170725.cfm.
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 (CFR), Sec. 635.410 requires
that steel or iron materials (including protective coatings) that will
be permanently incorporated in a Federal-aid project must be
domestically manufactured. 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 United States. 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
[[Page 16422]]
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. The FHWA's national waiver for
manufactured products does not apply to the requests in this notice
because these 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 equipment (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).
On April 18, 2017, the President issued Executive Order (E.O.)
13788--Buy American and Hire American. Section 2(a) of the E.O. 13788
establishes as a policy of the executive branch to ``maximize,
consistent with law. . .the use of goods, products, and materials
produced in the United States.'' Section 3(b)(i) requires every agency
to ``assess the. . .implementation of, and compliance with Buy American
Laws'' within their jurisdictions. Section 3(b)(ii) requires agencies
to assess the use of waivers within their agencies by type and impact
on domestic jobs and manufacturing. Section 3(b)(iii) requires agencies
to develop and propose policies to ensure that, to the extent permitted
by law, Federal financial assistance awards maximize the use of
materials produced in the United States.
In response to these E.O. 13788 requirements, the FHWA is
evaluating how to revise its Buy America policies and procedures,
including the process and manner in which it decides whether to grant
waivers for vehicles and equipment. This evaluation may result in
delays in decisions on whether to grant Buy America waivers in the
future.
Although FHWA has not found manufacturers that produce vehicles and
equipment in such a way that all their steel and iron elements are
manufactured domestically, the Agency is evaluating the process and
manner in which it considers these waivers to ensure that it is
consistent with the intent and purpose of E.O. 13788. The FHWA is aware
that in today's global industry, vehicles are assembled with iron and
steel components manufactured all over the world. The Agency also
understands the difficulty of identifying vehicles that have 100%
components made 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 United States, is
comprised of only 45 percent of United States and Canadian content
according to the National Highway Traffic Safety Administration's part
583 American Automobile Labeling Act Report web page.\1\ 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.
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\1\ http://www.nhtsa.gov/Laws+&+Regulations/Part+583+American+Automobile+Labeling+Act+(AALA)+Reports.
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However, the policy behind E.O. 13788 is to help stimulate economic
growth, create good jobs at decent wages, strengthen our middle class,
and support the American manufacturing and defense industrial bases.
Sec. 2(a), E.O. 13788. This means that FHWA Buy America policies should
be interpreted and applied in a manner that fosters innovative
approaches that would increase the manufacture of compliant domestic
steel and iron products and consistent with 23 U.S.C. 313. Unlike other
waiver requests, the requests for vehicle and equipment waivers have
been for recurrent products. The products waived in the past have been
of similar type and kind, yet there have been no changes in the
manufacturing process to produce Buy America compliant products or
products maximizing Buy America compliant content. The FHWA's practice
of approving waiver requests for these recurrent project types could be
setting the expectation that FHWA will always grant waivers for these
projects, discouraging innovative approaches and job creation in the
domestic steel and iron industry for this sector.
The FHWA is re-evaluating the process and manner in which it
decides whether to grant waivers for vehicles and vehicle-related
equipment. This change will not affect the approval of a waiver for
vehicles and equipment received during April to December, 2016
timeframe. The projects in these lists were submitted prior to the
issuance of the E.O. and have been published for informal comment
consistent with the Consolidated Appropriations Act of 2017 (Pub. L.
115-31) (see publications for December 7, 2016,\2\ March 21, 2017,\3\
and July 25, 2017 \4\). The FHWA received no comments in response to
these publications. Because FHWA has not found domestic manufacturers
that can produce the vehicles and equipment identified in this notice
in such a way that all their steel and iron materials are manufactured
domestically, FHWA finds that a waiver of FHWA's Buy America
requirements is appropriate under the non-availability criteria (23
U.S.C. 313(b)(2) and 23 CFR 635.410(c)(2)(ii)). However, FHWA believes
that it is consistent with the Buy America requirements to impose the
condition that the vehicles and the vehicle components be assembled in
the United States. Requiring final assembly to be performed in the
United States is consistent with past guidance to FHWA Division Offices
on manufactured products (see Memorandum on Buy America Policy
Response, Dec. 22, 1997).\5\ Moreover, in today's economic environment,
the Buy America requirement is especially significant in that it will
ensure that Federal-aid funds are used to support and create domestic
jobs. Thus, so long as the final assembly of the 151 State projects
occurs in the United States, applicants to this waiver request may
proceed to purchase these vehicles and equipment.
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\2\ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=139.
\3\ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=147.
\4\ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=153.
\5\ http://www.fhwa.dot.gov/programadmin/contracts/122297.cfm.
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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 non-availability waiver
of Buy America requirements is appropriate on the condition that the
vehicles and equipment identified in the notice are assembled
domestically. The FHWA invites public comment on this finding for an
additional 15 days following the issued 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. 110-161, 23 CFR 635.410)
Issued on: April 11, 2018.
Brandye L. Hendrickson,
Acting Administrator, Federal Highway Administration.
[FR Doc. 2018-07901 Filed 4-11-18; 4:15 pm]
BILLING CODE 4910-22-P