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Buy America Waiver Notification Publication: Federal Register Agency: Federal Highway Administration Byline: Kristin R. White Date: 30 September 2024 Subjects: American Government  , Roads & Highways
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[Federal Register Volume 89, Number 189 (Monday, September 30, 2024)]
[Notices]
[Pages 79685-79687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22278]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Buy America Waiver Notification
AGENCY: Department of Transportation (DOT), Federal Highway
Administration (FHWA).
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 Illinois
Department of Transportation (IDOT) for the procurement of submersible
pumps with non-domestic iron and steel components. Specifically, this
waiver covers the procurement by IDOT of 4 main, submersible pumps with
discharge capacity of 3,000 gallons per minute (gpm) each and 2 low
flow submersible pumps with discharge capacity of 921 gpm each
(``waiver items''), for the relocation of existing Pump Station No. 37.
DATES: The applicable date of the waiver is October 1, 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 8:00 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: www.FederalRegister.gov and the
Government Publishing Office's database at: www.GovInfo.gov.
Background
FHWA's Buy America regulation in 23 CFR 635.410 requires a domestic
manufacturing process for any steel or iron products (including
protective coatings) that are permanently incorporated in a Federal-aid
construction project. The FHWA also applies its Buy America
requirements to predominantly steel and iron manufactured products and
predominantly steel and iron components of manufactured products. This
means that for all predominantly steel or iron materials, products, or
components delivered to a project site for permanent incorporation into
a highway project using Title 23, U.S.C. funds, all manufacturing
processes, including application of a coating, must occur in the United
States. FHWA's Buy America regulation also provides for a waiver of the
Buy America requirements when satisfactory quality domestic steel and
iron products are not produced in the United States in sufficient and
reasonably available quantities.
Background on the Waiver Items: IDOT requested a Buy America waiver
for 4 main submersible pumps with a discharge capacity of 3,000 gpm
each
[[Page 79686]]
and 2 low flow submersible pumps with a discharge capacity of 921 gpm
each. IDOT requested a nonavailability waiver due to the inability to
find domestic manufacturers who could produce a pump that has all
predominantly iron and steel components in compliance with FHWA's Buy
America requirements. The waiver items are estimated to cost $300,000.
Background on the Project: The waiver items will be used in the
relocation of the existing Pump Station No. 37 out of IL 176 over the
US 41 bridge abutment and allow IDOT to provide a new pump station
consistent with IDOT standards. The new pump station is designed to
accommodate future pumping capacity to support the proposed US 41 at IL
176 interchange reconstruction reconfiguration.
Background on Waiver Request: Contracting agencies have
historically faced difficulty in procuring Buy America-compliant
submersible pumps.\1\ Prior to submitting the waiver request, IDOT
sought but failed to identify Buy America-compliant manufacturers for
the waiver items over a multi-year period from 2017 to 2020. In 2017,
IDOT contacted 12 pump manufacturers, with 4 not responding and the
remaining 8 stating that they either do not manufacture submersible
pumps with domestic steel components or that they could not otherwise
comply with FHWA's Buy America requirements. IDOT contacted the same 12
manufacturers in 2020 as well as an additional 3 pump manufacturers.
Out of these 15, 4 did not respond, 9 stated that they could not meet
the design intent of the waiver items, and 2 responded that they could
meet the design intent of the waiver items but could not comply with
FHWA's Buy America requirements. Neither of those two manufacturers
could ensure that all predominantly steel components would meet FHWA's
Buy America requirements.
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\1\ For example, IDOT requested and received a waiver for the
use of non-domestic main submersible pumps in 2012. See 77 FR 72433
(Dec. 6, 2022).
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In accordance with section 122 of Title I of Division L of the
Consolidated Appropriations Act, 2023 (Pub. L. 117-328), section 117 of
the SAFETEA-LU Technical Corrections Act of 2008 (Pub. L. 110-244), and
23 U.S.C. 313(g), the notice of waiver request was posted on FHWA's
public facing web page on August 28, 2023, soliciting public comment on
the intent to issue a waiver of the waiver items for a 15-day
period.\2\
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\2\ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=175. The notice of waiver request was also posted to
the DOT Made in America website and Made in America website at
https://www.madeinamerica.gov/waivers/federal-financial-assistance/64ee24fcde9c662b02e0a782 on August 29, 2023.
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Comments to the Notice of Waiver Request: FHWA received comments
from seven different commenters in response to the notice of waiver
request. Three commenters broadly supported the waiver and two broadly
opposed it. The two commenters opposing the waiver did not offer any
specific information on the availability of Buy America-compliant
products, nor did they suggest specific, additional actions that IDOT
could take to maximize its use of goods, products, and materials
produced in the United States.
The remaining two commenters represented two different pump
manufacturers. One pump manufacturer incorrectly stated that the waiver
items are subject to the manufactured product requirements of the Build
America, Buy America Act (BABA), enacted as part of the Bipartisan
Infrastructure Law (BIL) (Pub. L. 117-58). BIL, div. G sections 70901-
27. Manufactured products permanently incorporated into a highway
project using Title 23, U.S.C. funds are subject to FHWA's Buy America
requirements, not BABA's manufactured product requirements.\3\ This
commenter further stated that it anticipated producing BABA-compliant
pumps in mid-2024 but did not state whether these pumps would be Buy
America-compliant under FHWA's Buy America requirements at 23 CFR
635.410. The second pump manufacturer commented that it had the ability
to produce Buy America-compliant pumps. On September 21, 2023, FHWA
requested that this manufacturer provide a letter certifying and
verifying that it could produce Buy America-compliant pumps. On October
10, 2023, the manufacturer submitted a letter to IDOT, stating that it
could produce the waiver items domestically. However, after additional
outreach and discussion with that manufacturer, on January 16, 2024,
IDOT informed FHWA that the manufacturer was unable to produce a Buy
America-compliant version of the waiver items because the manufacturer
could not produce a bare shaft for the pump domestically, meaning that
it could not produce a pump where all predominantly iron or steel
components were Buy America-compliant. Thus, no comments received in
response to the notice of waiver request indicated that the waiver
items are available domestically.
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\3\ Pursuant to BABA's manufactured product requirements, the
manufactured product must be produced in the United States and must
have 55 percent of its components, by cost, be mined, produced, or
manufactured in the United States. BABA Sec. 70912(6)(B). Under
FHWA's Buy America requirements, which apply to iron, steel, and
manufactured products, all predominantly steel or iron materials,
products, or components must have all manufacturing processes,
including application of a coating, occur in the United States;
however, FHWA has otherwise waived the application of Buy America to
manufactured products. The FHWA applies these Buy America
requirements to iron, steel, and manufactured products, not the
requirements of BABA. See BABA Sec. 70917(a)-(b). For this reason,
to be permanently incorporated in highway projects using title 23,
U.S.C. funds, manufactured products must have all manufacturing
processes of all predominantly steel or iron components occur in the
United States. A manufactured product is not Buy America-compliant
if it complies with BABA's manufactured product requirements but has
foreign predominantly iron or steel components.
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FHWA also consulted with the National Institute of Standards and
Technology's Hollings Manufacturing Extension Partnership (NIST-MEP)
through NIST-MEP's supplier scouting process to consult manufacturers
from across the Nation. This search period ended in October 2023. This
supplier scouting process also did not identify any companies that
could provide compliant pumps.
Timing and Need for a Waiver: The existing Pump Station No. 37 was
constructed in the 1930s and can only be accessed from northbound
traffic on US 41, making maintenance of the station difficult. In
addition, the dry pit is connected to the grade level space, making the
entire station a hazardous classified location as there is a direct
connection to the below grade pumping in the dry pit. The electrical
and controls equipment are also located at grade level, which is also a
hazardous classified location, and the electrical and controls
equipment are not suitable for the hazardous location. These problems
necessitate replacement of the existing station. IDOT further explained
that the outlet pipe for the pump station is in very poor condition.
Relocating the pump station will require the procurement of new pumps
to accommodate future pumping capacity. The letting of the project has
been postponed several times as IDOT has been unable to find Buy
America-compliant pumps. If a waiver is not approved, the relocation of
the pump station will not be able to proceed.
Assessment of Cost Advantage of a Foreign-Sourced Product: Under
OMB 24-02, Agencies are expected to 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'' as appropriate before granting a public interest waiver.
FHWA has concluded that this assessment is not
[[Page 79687]]
applicable to this waiver as this waiver is based on nonavailability
rather than the cost disadvantage of domestically-sourced products.
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 and the lack of responsive comments to the notice of waiver
request identifying a domestic source for the waiver items, 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 there are no Buy America-compliant versions of the
waiver items and is waiving its Buy America requirements set forth at
23 U.S.C. 313 and 23 CFR 635.410 for the following products used by
IDOT in the relocation of Pump Station No. 37: 4 main submersible pumps
with discharge capacity of 3,000 gpm each and 2 low flow submersible
pumps with discharge capacity of 921 gpm each. This finding only
includes the specified pumps identified in the waiver request and
supporting documents included on FHWA's website.
This waiver is limited to applicable purchases by IDOT, IDOT's
contractors, or subcontractors (of whatever tier) of the waiver items
for the Pump Station 37 Project. The waiver does not apply to purchases
made for any other products or projects. The proposed waiver would be
effective from the effective date of the final waiver through the
period of performance and closeout of FHWA's financial assistance for
the project, which is estimated to be in October 2028.
IDOT and its contractors and subcontractors involved in the
procurement of the relevant submersible pumps are reminded of the need
to comply with the Cargo Preference Act in 46 CFR part 38, if
applicable.
In accordance with the provisions of Section 117 of the SAFETEA-LU
Technical Corrections Act of 2008 (Pub. L. 110-244), FHWA is providing
this notice as its finding that a waiver of Buy America requirements is
appropriate. FHWA invites public comment on this finding for an
additional 5 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. 117-328; 23 CFR 635.410.
Kristin R. White,
Acting Administrator, Federal Highway Administration.
[FR Doc. 2024-22278 Filed 9-27-24; 8:45 am]
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