[Federal Register Volume 81, Number 180 (Friday, September 16, 2016)]
[Notices]
[Pages 63854-63855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22301]


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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 21 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 September 19, 2016.

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. William Winne, FHWA Office of 
the Chief Counsel, 202-366-1397, 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

    This notice provides information regarding FHWA's finding that a 
Buy America waiver is appropriate for the obligation of Federal-aid 
funds for 21 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 
796 vehicles and equipment acquisitions. The requests for the second 
quarter of calendar year 2016, available at http://www.fhwa.dot.gov/construction/contracts/cmaq160713.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, Code of Federal Regulations, section 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

[[Page 63855]]

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, 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=131 on 
July 13th. The FHWA received five comments in response to the 
publication. Two commenters are in favor of the waiver. One commenter 
suggested that amendments should be made to use American made vehicles 
if possible. The other two commenters opposed the waiver without 
suggestions regarding domestic availability of the proposed vehicles 
and equipment project.
    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, 
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 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 21 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; P.L. 110-161, 23 CFR 635.410.

    Issued on: August 29, 2016.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.
[FR Doc. 2016-22301 Filed 9-15-16; 8:45 am]
BILLING CODE 4910-22-P