[Federal Register Volume 78, Number 227 (Monday, November 25, 2013)]
[Notices]
[Pages 70395-70396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28186]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration


Buy America Waiver Notification

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice.

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SUMMARY: This notice provides information regarding the FHWA's finding 
that a partial Buy America waiver is appropriate for the obligation of 
Federal-aid Congestion Mitigation and Air Quality (CMAQ) Improvement 
Program funds for the purchase of 378--light, medium, and heavy duty 
plug-in battery electric and compressed natural gas vehicles by Chicago 
DOT.

DATES: The effective date of the waiver is November 26, 2013.

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 
[email protected]. For legal questions, please contact Mr. 
Michael Harkins, FHWA Office of the Chief Counsel, (202) 366-4928, or 
via email at [email protected]. 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 Printing Office's database at: http://www.access.gpo.gov/nara.

Background

    The FHWA's Buy America policy 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 regulation also provides for a waiver of the 
Buy America requirements when the application would be inconsistent 
with the public interest or when satisfactory quality domestic steel 
and iron products are not sufficiently available. This notice provides 
information regarding the FHWA's finding that a partial Buy America 
waiver is appropriate for the obligation of Federal-aid CMAQ program 
funds for the purchase of 378--light, medium, and heavy duty plug-in 
battery electric and compressed natural gas vehicles by Chicago DOT.
    In accordance with Division A, section 122 of the ``Consolidated 
and Further Continuing Appropriations Act, 2012'' (Pub. L. 112-55), the 
FHWA published a notice of intent to issue a waiver on its Web site for 
the 378--light, medium, and heavy duty plug-in battery electric and 
compressed natural gas vehicles (http://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=92) on September 5, 2013. The FHWA received no 
comments in response to the publication.
    During the 15-day comment period, the FHWA conducted additional 
review but was unable to locate a domestic manufacturer that could meet 
a 100 percent domestic steel and iron content requirement. Based on all 
the information available to the Agency, the FHWA concludes that there 
are no domestic manufacturers that could meet a 100 percent domestic 
steel and iron content for light, medium, and heavy duty plug-in 
battery electric and compressed natural gas vehicles.
    The FHWA has reevaluated the applicability of the Buy America 
requirement as it may apply to the purchase of the vehicles. The FHWA's 
Buy America requirement was initially established in 1983 when the 
acquisition of vehicles was not eligible for assistance under the 
Federal-aid highway program. As such, the FHWA's Buy America 
requirements were tailored to the types of products that are typically 
used in highway construction, which generally meet a 100 percent 
domestic steel and iron content requirement.
    Vehicles, however, are not the types of products that were 
initially envisioned as being purchased with Federal-aid highway funds 
when Buy America was first enacted. In today's global industry, 
vehicles are assembled with components that are made all over the 
world. The FHWA is not aware of any vehicle on the market that can 
claim to incorporate 100 percent domestic steel and iron content. For 
instance, the Chevy Volt, which was identified by many commenters in a 
November 21, 2011, Federal Register notice as being a car that is made 
in the United States, comprises only 40 percent United States and 
Canada content according to the window sticker (http://www.cheersandgears.com/uploads/1298005091/med_gallery_51_113_449569.png). There is no indication of how much of this 40 percent 
United States/Canadian content is United States-made content. Thus, the 
FHWA does not believe that application of a domestic content standard 
should be applied to the purchase of vehicles. However, the FHWA 
believes that the vehicles should be assembled in the United States. 
Whenever a person discusses the manufacture of vehicles, the discussion 
typically refers to where the final assembly takes place. For instance, 
under a previous proposed waiver notification and comment process, 
several commenters urged that the waiver be denied because the Chevy 
Volt is made in the United States, the FHWA interprets these comments 
as referring to the assembly of the vehicle in Detroit since the Volt 
window sticker says that the United States/Canada parts content of the 
vehicle is only 40 percent. While the manufacture of steel and iron 
products that are typically used in highway construction (such as pipe, 
rebar, struts, and beams) generally refers to the various processes 
that go into actually making the entire product, the manufacture of 
vehicles typically refers to where the vehicle is assembled. Thus, 
given the inherent differences in the type of products that are 
typically used in highway construction and vehicles, we feel that 
simply waiving the Buy America requirement, which is based on the 
domestic content of the product, without any regard to where the 
vehicle is assembled would diminish the purpose of the Buy America 
requirement.
    Therefore, while the FHWA has not located a vehicle that meets a 
100 percent domestic iron and steel content requirement, the FHWA does 
not find that a complete waiver based on non-availability pursuant to 
23 U.S.C. 313(b)(2) is appropriate. However, the FHWA also recognizes 
that at least a partial waiver is necessary in order to permit Chicago 
DOT to proceed with its project. The FHWA believes that a partial 
waiver that allows the Chicago

[[Page 70396]]

DOT to purchase the vehicles so long as the final assembly of the 
vehicle as the end product occurs in the United States is appropriate. 
This approach is similar to the conditional waivers given to Alameda 
County, San Francisco County, and Merced County, CA, for vehicle 
purchases on November 21, 2011 (76 FR 72027 and 76 FR 72028) and March 
30, 2012 (77 FR 19410) as well as one provided for a group of similar 
purchases in multiple States on June 17, 2013 (78 FR 36296).
    In conclusion, and in light of the above, pursuant to 23 U.S.C. 
313(b)(1), the FHWA finds that it is in the public interest to grant a 
partial waiver from the general 100 percent domestic content 
requirement that applies to Federal-aid highway projects under Buy 
America. Under this partial waiver, however, the final assembly of any 
vehicles purchased with CMAQ funds must occur in the United States. 
Thus, so long as the final assembly of the light, medium, and heavy 
duty plug-in battery electric and compressed natural gas vehicles 
occurs in the United States, Chicago DOT may proceed to purchase these 
vehicles consistent with the Buy America requirement.
    In accordance with the provisions of section 117 of the SAFETEA-LU 
Technical Corrections Act of 2008 (Pub. L. 110-244, 122 Stat. 1572), 
the FHWA is providing this notice as its finding that a waiver of Buy 
America requirements is appropriate. 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 the FHWA's Web site via the 
link provided to the Chicago DOT waiver page noted above.

    Authority: 23 U.S.C. 313; Pub. L. 110-161, 23 CFR 635.410).

    Issued on: November 18, 2013.
Victor M. Mendez,
Administrator.
[FR Doc. 2013-28186 Filed 11-22-13; 8:45 am]
BILLING CODE 4910-22-P