Buy America Waiver Notification |
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Topics: Interstate Highway System
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Brandye L. Hendrickson
Environmental Protection Agency
6 October 2017
[Federal Register Volume 82, Number 193 (Friday, October 6, 2017)]
[Notices]
[Pages 46882-46883]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21567]
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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 4 California projects involving the acquisition of vehicles
under the Congestion Mitigation and Air Quality Improvement program on
the condition that they be assembled in the U.S., on the basis that
there are no domestic manufacturers that produce the vehicles
identified in this notice in such a way that all their steel and iron
elements are manufactured domestically.
DATES: The effective date of the waiver is October 10, 2017.
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.
Background
This notice provides information regarding FHWA's finding that a
Buy America waiver is appropriate for the obligation of Federal-aid
funds for 4 California projects involving the acquisition of vehicles
under the Congestion Mitigation and Air Quality Improvement (CMAQ)
program. The waiver would apply to approximately 29 vehicle
acquisitions on the condition that they be assembled in the United
States. These involve 17 compressed natural gas solid waste trucks for
the City of Visalia (CMLNI-5044(117)), 1 propane powered school bus for
the City of Visalia (CMLNI-5044(119)), 6 diesel refuse trucks for the
City of Tulare (CMLNI-5072(061)), and 5 compressed natural gas refuse
trucks for the City of Porterville (CMLNI-5122(086)).
Title 23, Code of Federal Regulations (CFR), section 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 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 manufacturers that produce the vehicles
identified in this notice in such a way that all their steel and iron
elements are manufactured domestically. The FHWA's Buy America
[[Page 46883]]
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 United States. 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 at 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
domestically manufactured (from initial melting and mixing) iron and
steel content.
Consistent with the Consolidated Appropriations Act of 2017 (Pub.
L. 115-31), FHWA published two notices seeking comments whether a
waiver is appropriate on its Web site, https://www.fhwa.dot.gov/construction/contracts/cmaq170321.cfm and https://www.fhwa.dot.gov/construction/contracts/cmaq170725.cfm. The FHWA received no comments in
response to the publication. Based on FHWA's conclusion that there are
no domestic manufacturers that can produce the vehicles 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, 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-aid funds are used to
support and create domestic jobs. This approach is similar to the
conditional waivers previously given for various vehicle projects.
Thus, so long as the final assembly of the 29 vehicles occurs in the
United States, applicants to this waiver request may proceed to
purchase these vehicles 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 non-availability waiver
of Buy America requirements is appropriate on the condition that the
vehicles identified in the notice are assembled domestically. 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: October 2, 2017.
Brandye L. Hendrickson,
Acting Administrator, Federal Highway Administration.
[FR Doc. 2017-21567 Filed 10-5-17; 8:45 am]
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