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Buy America Waiver Notification Publication: Federal Register Agency: Federal Highway Administration Byline: Shailen P. Bhatt Date: 15 March 2024 Subjects: American Government  , Roads & Highways
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[Federal Register Volume 89, Number 52 (Friday, March 15, 2024)]
[Notices]
[Pages 19001-19003]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05533]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Buy America Waiver Notification
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Notice.
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SUMMARY: This notice provides information regarding FHWA's finding that
it is appropriate to grant a Buy America waiver to the City of Mount
Vernon, Washington, for procurement of non-domestic iron and steel
products and components, used in construction of the Mount Vernon
Library Commons Project (Project) in the City of Mount Vernon,
Washington. The waiver relates specifically to manufactured products
that are part of the elevator equipment; mechanical, electrical, and
plumbing systems; and architectural elements of the Project.
DATES: The effective date of the waiver is March 18, 2024.
FOR FURTHER INFORMATION CONTACT: For questions about this notice,
please contact Mr. Brian Hogge, FHWA Office of Infrastructure, 202-366-
1562, or via email at Brian.Hogge@dot.gov. For legal questions, please
contact Mr. David Serody, FHWA Office of the Chief Counsel, 202-366-
1345, or via email at David.Serody@dot.gov. Office hours for FHWA are
from 8 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: www.FederalRegister.gov and the
Government Publishing Office's database at: www.GovInfo.gov.
Background
The FHWA's Buy America requirements for steel and iron are set
forth at 23 U.S.C. 313 and 23 CFR 635.410 and require that all steel
and iron that are permanently incorporated into a Federal-aid project
must be
[[Page 19002]]
produced in the United States unless a waiver is granted, including
predominantly steel and iron components of a manufactured product.\1\
Under these requirements, all manufacturing processes, including the
application of a coating, must occur in the United States.\2\
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\1\ Under 23 U.S.C. 313, FHWA has a Buy America requirement for
manufactured products; however, FHWA has a standing waiver under 23
U.S.C. 313(b), known as the Manufactured Products General Waiver,
which covers manufactured products that are not predominantly steel
and iron. See 48 FR 53099 (Nov. 25, 1983).
\2\ While the Build America, Buy America Act (BABA), included in
the Infrastructure Investment and Jobs Act (also known as the
``Bipartisan Infrastructure Law'' (BIL)) (Pub. L. 117-58), sets out
Buy America preferences for steel, iron, manufactured products, and
construction materials, these preferences only apply to the extent
that a domestic content procurement preference, as described in
section 70914 of BABA, does not already apply to iron, steel,
manufactured products, and construction materials. BIL section
70917(a)-(b). As FHWA has existing domestic content preferences for
steel, iron, and manufactured products at 23 U.S.C. 313, the
requirements under 23 U.S.C. 313 apply to steel, iron, and
manufactured products instead of the requirements under BABA. As
FHWA's existing Buy America requirement does not specifically cover
construction materials, the Buy America preference under section
70914 of BABA applies for construction materials.
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Under 23 U.S.C. 313(b) and 23 CFR 635.410(c), FHWA may waive the
application of its Buy America requirement for steel and iron if the
application would be inconsistent with the public interest; or when
products are not produced in the United States in sufficient and
reasonably available quantities of a satisfactory quality. This notice
provides information regarding FHWA's finding that it is appropriate to
grant the City of Mount Vernon a Buy America waiver for procurement of
non-domestic iron and steel products that are part of the elevator
equipment; mechanical, electrical, and plumbing systems; and
architectural elements of the Project. The ``specified products''
include: (i) elevator conveying equipment; (ii) elevator sump pump;
(iii) HVAC controls; (iv) hydronic pumps; (v) energy recovery
ventilators; (vi) split system A/C; (vii) coalescing style air and
sediment separator; (viii) air source water heat pumps; (ix) fan coil
units Nailor; (x) fan coil units Daikin; (xi) switchboards; (xii)
panelboards; (xiii) an intercom system; (xiv) an AV system wall rack;
(xv) heat pump water heaters; (xvi) a backflow preventer; (xvii) metal
wall and roof panel fasteners; (xviii) terracotta fasteners; (xix) a
retractable acoustic wall; (xx) a folding glass panel partition; (xxi)
electric bike charging lockers; (xxii) uni-strut fasteners; and (xxiii)
a fire alarm system (collectively ``waiver items'').
Background on the Project: The Project is a multi-story structure
that includes multiple civic elements including a public parking
garage, public library, community center, meeting rooms, commercial
kitchen, public restrooms, STEM center, and public computing area. The
project also incorporates electric vehicle charging infrastructure.
The notice of waiver request stated that the City of Mount Vernon
had not received FHWA financial assistance to that point but was
applying for funding under the Charging and Fueling Infrastructure
Discretionary Grant Program (CFI Program) and Transportation
Infrastructure Finance and Innovation Act program (TIFIA). Since the
notice of waiver request was published, FHWA recently awarded the City
$12,500,000 in funding under the CFI Program; \3\ the City continues to
seek additional credit assistance under TIFIA.
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\3\ Under 23 U.S.C. 313(h), FHWA's Buy America requirement
applies to the entire scope of the project, as defined in the
applicable finding, determination, or decision under the National
Environmental Policy Act, when Federal funds are used in any part of
the project regardless of whether Federal funds are used in the
actual component that is subject to the waiver.
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Background on Waiver Request: The City of Mount Vernon and its
contractor contacted numerous manufacturers regarding Buy America-
compliant versions of the waiver items. The city and its consultants
also conducted an independent search for Buy America-compliant versions
of the waiver items with distributors and manufacturers and by
contacting smaller but reputable manufacturers with whom they have
previously worked. The City of Mount Vernon, the city's contractor, and
the city's consultants were unable to locate any domestic manufacturers
or fabricators of the waiver items that were able to provide Buy
America-compliant products that satisfy the Project's design needs
prior to requesting a waiver.
In accordance with section 123 of Division A of the Consolidated
Appropriations Act, 2010 (Pub. L. 111-117), section 117 of the SAFETEA-
LU Technical Corrections Act of 2008 (Pub. L. 110-244), and 23 U.S.C.
313(g), FHWA posted a notice of the waiver request on its website on
September 13, 2023, soliciting public comment on the intent to issue a
waiver of the waiver items for a 15-day period.\4\
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\4\ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=176.
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Waiver Justification Summary
Comments to the Notice of Waiver Request: The FHWA received 25
comments in response to the notice of the waiver request. Twenty-three
commenters supported the waiver and two opposed it. One of the
commenters opposing the waiver merely stated that the commenter did not
support the waiver because the commenter does not support the use of
FHWA funds for the Project. This commenter did not offer any specific
information on the availability of Buy America-compliant waiver items,
nor did the commenter suggest specific, additional actions that the
City of Mount Vernon could take to maximize its use of goods, products,
and materials produced in the United States.
The other commenter, who represented a manufacturer, indicated they
can make many of the waiver items domestically. In subsequent
discussions between FHWA, the City of Mount Vernon, and the
manufacturer, the company stated that the only Buy America-compliant
waiver item that it might be able to provide domestically would be the
hydronic pumps. On October 18, 2023, the city provided the manufacturer
with the timeline for when each hydronic pump would be needed on site
based on the project schedule. The city also requested a response that
included a commitment to provide the hydronic pumps by November 21,
2023. On November 27, 2023, the City of Mount Vernon notified FHWA that
the city had received no further reply. Thus, the city did not receive
any new information indicating that any of the waiver items could be
produced by domestic manufacturers from any of the commenters opposing
the waiver.
Accordingly, FHWA believes that the city has made substantial
efforts to find suitable Buy America-compliant waiver items for the
Library Commons project. The FHWA reviewed the market research
conducted by the city and, in consultation with the National Institute
of Standards and Technology Manufacturing Extension Partnership,
determined that further supplier scouting would not be warranted. The
waiver items include iron and steel components of manufactured products
of unknown origin, and FHWA does not believe that additional supplier
scouting would uncover items where all iron and steel components could
be shown to be domestically produced or manufacturers who wish to
modify their manufacturing processes to incorporate such domestically
produced components.
[[Page 19003]]
Timing and Need for a Waiver: The waiver items are essential to the
Project. Further, the City of Mount Vernon maintains that approval of a
Buy America waiver for use of the waiver items in the Project is
critical to maintain the schedule of ongoing construction on the
Project. The City explained that the Project is scheduled to be
substantially complete in March 2024 and that it is now at a juncture
where delays in the approval of the Buy America waiver may delay
completion of construction with commensurate additional payments to the
contractor.
In addition, the City of Mount Vernon has not located any domestic
manufacturers for the waiver items, nor has any domestic manufacturer
identified the ability to produce Buy America-compliant waiver items
through the public comment process. These waiver items include many
small iron and steel components of unknown origin incorporated into
manufactured products that under FHWA's Buy America requirements must
be domestically manufactured.\5\ Due to the nature of the Project and
the waiver items, however, many of the waiver items are not commonly
used on FHWA-funded projects.
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\5\ FHWA's Buy America requirements differ from requirements
applicable to other Federal Agencies under BABA in that
predominantly iron and steel components of manufactured products
must be Buy America- compliant. Under BABA, manufactured products
must be manufactured in the United States and the cost of the
manufactured product's components that are mined, produced, or
manufactured in the United States must be greater than 55 percent of
the total cost of all components of the manufactured product;
however, BABA does not specifically mandate that iron and steel
components in particular must be domestically manufactured. See BABA
section 70912(6)(B).
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Executive Order 14005: Executive Order (E.O.) 14005, entitled
``Ensuring the Future is Made in All of America by All of America's
Workers,'' provides that Federal Agencies should, consistent with
applicable law, maximize the use of goods, products, and materials
produced in, and services offered in, the United States. 86 FR 7475
(Jan. 28, 2021). Based on the information contained in the waiver
request from the City of Mount Vernon and the lack of responsive
comments to the notice of waiver request, FHWA concludes that issuing a
waiver is not inconsistent with E.O. 14005.
Finding and Request for Comments
Based on all the information available to the Agency, FHWA
concludes that, with respect to the specified products, there are no
Buy America-compliant items and is waiving its Buy America requirements
for steel and iron set forth at 23 U.S.C. 313 and 23 CFR 635.410 for
recipient purchases of the following produces used in the Mount Vernon
Library Commons Project (``specified products''): (i) elevator
conveying equipment; (ii) elevator sump pump; (iii) HVAC controls; (iv)
hydronic pumps; (v) energy recovery ventilators; (vi) split system A/C;
(vii) coalescing style air and sediment separator; (viii) air source
water heat pumps; (ix) fan coil units Nailor; (x) fan coil units
Daikin; (xi) switchboards; (xii) panelboards; (xiii) an intercom
system; (xiv) an AV system wall rack; (xv) heat pump water heaters;
(xvi) a backflow preventer; (xvii) metal wall and roof panel fasteners;
(xviii) terracotta fasteners; (xix) a retractable acoustic wall; (xx) a
folding glass panel partition; (xxi) electric bike charging lockers;
(xxii) uni-strut fasteners; and (xxiii) a fire alarm system. This
finding only includes components identified in the waiver request and
supporting documents included on FHWA's website.
The waiver applies to the specified products used in the Project
that are subject to Buy America as a result of obligations of Federal
financial assistance made by FHWA for the Project. FHWA will obligate
award funds following the effective date of this waiver. The City of
Mount Vernon and its contractors and subcontractors involved in the
procurement of the relevant components are reminded of the need to
comply with the Cargo Preference Act in 46 CFR part 38, if applicable.
The OMB Memorandum M-24-02 provides that, before granting a waiver
in the public interest, to the extent permitted by law, Federal
Agencies shall assess whether a significant portion of any cost
advantage of a foreign-sourced product is ``the result of the use of
dumped steel, iron, or manufactured products or the use of injuriously
subsidized steel, iron, or manufactured products.'' \6\ However,
because the waiver that FHWA is finalizing in this notice is not based
on consideration of the cost advantage of any foreign-sourced steel,
iron, or manufactured products, there is not a specific cost advantage
for FHWA to now consider.
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\6\ https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf.
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In accordance with the provisions of section 117 of the SAFETEA-LU
Technical Corrections Act of 2008, FHWA is providing this notice as its
finding that a waiver of its Buy America requirements for steel and
iron is appropriate. The FHWA invites public comment on this finding
for an additional five days following the effective 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.
Shailen P. Bhatt,
Administrator, Federal Highway Administration.
[FR Doc. 2024-05533 Filed 3-14-24; 8:45 am]
BILLING CODE 4910-22-P