[Federal Register Volume 81, Number 95 (Tuesday, May 17, 2016)]
[Notices]
[Pages 30601-30602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11579]


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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 34 State projects involving the acquisition of vehicles and 
equipment on the condition that they be assembled in the U.S.

DATES: The effective date of the waiver is May 18, 2016.

FOR FURTHER INFORMATION CONTACT: For questions about this notice, 
please contact Mr. Gerald Yakowenko, FHWA Office of Program 
Administration, telephone 202-366-1562, or via email at 
[email protected]. For legal questions, please contact Ms. 
Jennifer Mayo, FHWA Office of the Chief Counsel, 202-366-1523, 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 Web site at http://www.archives.gov and the 
Government Printing Office's database at http://www.access.gpo.gov/nara.

Background

    This notice provides information regarding FHWA's finding that a 
Buy America waiver is appropriate for the obligation of Federal-aid 
funds for 34 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 U.S. The waiver would apply to approximately 
2,528 vehicles and equipment acquisitions. The requests for the fourth 
quarter of calendar year 2015, available at http://www.fhwa.dot.gov/construction/contracts/cmaq160317.cfm, are incorporated by reference 
into this notice. 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, section 635.410, Code of Federal Regulations (23 CFR 
635.410) requires that steel or iron materials (including protective 
coatings) that will be permanently incorporated in a Federal-aid 
project must be manufactured in the U.S. 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 U.S. 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 domestic manufacturers that produce the 
vehicles and vehicle components identified in this notice in such a way 
that their steel and iron elements are manufactured domestically. The 
FHWA's Buy America 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 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 U.S., is comprised of only 45 percent of U.S. and Canadian 
content according to the National Highway Traffic Safety 
Administration's part 583 American Automobile Labeling Act Report Web 
page (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 U.S. 
manufactured (from initial melting and mixing) iron and steel content.
    In accordance with Division K, section 122 of the Consolidated and 
Further Continuing Appropriations Act of 2015 (Pub. L. 113-235), FHWA 
published a notice of intent to issue a waiver on its Web site at 
http://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=119 on 
March 17th. The FHWA received 11 comments in response to the 
publication. Three commenters support granting the waiver and stated 
that ``the vehicles represent an ideal way for domestic clean fuel to 
be used and help air quality, economic security, and the regions.'' 
Five commenters opposed granting the waiver and three commenters 
provided general comments suggesting that: (1) Buy America is supposed 
to bring manufacturing jobs back home; (2) the list is very expansive 
and appeared to be a list of products that are based on preference but 
could not be purchased domestically; and (3) some of the Recreational 
Trail items are specialized items available off the shelf. These 
commenters did not provide a recommendation for domestic products that 
fully comply with FHWA's Buy America requirements.
    Based on FHWA's conclusion that there are no domestic manufacturers 
that can produce the vehicles and equipment identified in this notice 
in such a way that steel and iron materials are manufactured 
domestically, and after consideration of the comments received, FHWA 
finds that application of FHWA's Buy America requirements to these 
products is inconsistent with the public interest (23 U.S.C. 313(b)(1) 
and 23 CFR 635.410(c)(2)(i)).
    However, FHWA believes that it is in the public interest and 
consistent with the Buy America requirements to impose the condition 
that the vehicles and the vehicle components be assembled in the U.S. 
Requiring final assembly to be performed in the U.S. is consistent with 
past guidance to FHWA Division Offices on manufactured products (see 
Memorandum on Buy America Policy Response, December 22,

[[Page 30602]]

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 Highway Trust Fund dollars are used to support and create jobs 
in the U.S. This approach is similar to the conditional waivers 
previously given for various vehicle projects. Thus, so long as the 
final assembly of the 34 State projects occurs in the U.S., applicants 
to this waiver request may proceed to purchase these vehicles and 
equipment 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 public interest waiver of 
Buy America requirements is appropriate on the condition that the 
vehicles and equipment identified in the notice be assembled in the 
U.S. 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; PL 110-161; 23 CFR 635.410.

    Issued on: May 9, 2016.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.
[FR Doc. 2016-11579 Filed 5-16-16; 8:45 am]
 BILLING CODE 4910-22-P