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Buy America Waiver Notification

American Government Special Collections Reference Desk

American Government

Buy America Waiver Notification

Victor M. Mendez
Federal Highway Administration
December 30, 2013


[Federal Register Volume 78, Number 250 (Monday, December 30, 2013)]
[Notices]
[Pages 79560-79561]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-31236]


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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 funds for 112 State requests regarding specific vehicle 
projects (including sedans, vans, pickups, SUVs, trucks, buses, and 
equipment, such as backhoes, street sweepers, tractors and low emission 
locomotives), including projects to retrofit vehicles with individual 
vehicle components, so long as they are assembled in the United States. 
The FHWA's Buy America requirements provide that 100 percent of all 
steel and iron comprising a predominantly steel and iron product that 
is permanently incorporated into a project must be domestically 
manufactured. With respect to vehicles, manufacturers typically 
assemble these products with many different components and 
subcomponents containing steel and iron. As a result, vehicles are 
typically referred to as being made where the final product rolls off 
the assembly line for delivery into the marketplace. The FHWA is 
unaware of any vehicle that is comprised of 100 percent domestically 
produced steel and iron, resulting in a need for a partial Buy America 
waiver for these projects to proceed.

DATES: The effective date of the waiver is December 31, 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 
gerald.yakowenko@dot.gov. For legal questions, please contact Mr. 
Michael Harkins, FHWA Office of the Chief Counsel, (202) 366-4928, or 
via email at michael.harkins@dot.gov. 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 requirements at 23 U.S.C. 313 require a 
domestic manufacturing process for any steel or iron products 
(including protective coatings) that are permanently incorporated in a 
Federal-aid project. The statute 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 funds for the 
purchase of 112 State requests regarding specific vehicle projects 
(including sedans, vans, pickups, SUVs, trucks, buses, and equipment, 
such as backhoes, street sweepers, and tractors and low emission 
locomotives).\1\
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    \1\ See http://www.fhwa.dot.gov/construction/contracts/cmaq131115.cfm
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    In accordance with Division A, section 122 of the ``Consolidated 
and Further Continuing Appropriations Act, 2012'' (Pub. L. 112-284), 
the FHWA published a notice of intent to issue a waiver on its Web site 
for 112 State requests regarding specific vehicle projects (including 
sedans, vans, pickups, SUVs, trucks, buses, and equipment, such as 
backhoes, street sweepers, and tractors) (http://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=93) on November 15th. The FHWA 
received 20 comments in response to the publication. No commenter 
objected to the waiver, and one commenter expressed concern regarding 
FHWA's current process of approving a waiver for vehicle retrofit 
projects under the Congestion Mitigation Air Quality (CMAQ) Improvement 
Program. This commenter suggested that FHWA should make all diesel 
retrofit devices and components exempt from the Buy America 
requirements.
    The FHWA appreciates the need to provide clear guidance concerning 
the application of Buy America requirements to vehicles and diesel 
engine retrofit projects; however, the issuance of guidance for that 
subject is outside of the scope of this Notice. The FHWA issued a 
Federal Register Notice and Request for Comment on various aspects of 
the Buy America requirements on July 10, 2013. The FHWA is currently 
evaluating all comments and assessing the need for additional guidance 
or clarification.
    Based on all the information available to the agency, the FHWA 
concludes that

[[Page 79561]]

there are no domestic manufacturers that could meet a 100 percent 
domestic steel and iron content for the 112 State requests regarding 
specific vehicle projects (including sedans, vans, pickups, SUVs, 
trucks, buses, and equipment, such as backhoes, street sweepers, and 
tractors and low emission locomotives).
    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 were 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 (76 FR 
72027) 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. However, there is an indication on the window sticker 
concerning whether the Volt was assembled in the United States.
    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 types 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. Moreover, in today's economic environment, 
the Buy America requirement is especially significant in that it will 
ensure that Federal Highway Trust Fund (HTF) dollars are used to 
support and create jobs in the United States.
    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 the State DOTs 
to proceed with the projects. The FHWA believes that a partial waiver 
that allows the public agencies to purchase 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 partial waivers 
previously given for various vehicle projects.
    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 HTF funds must occur in the United States. 
Thus, so long as the final assembly of the 112 vehicle projects 
(including sedans, vans, pickups, SUVs, trucks, buses, and equipment, 
such as backhoes, street sweepers, and tractors) occurs in the United 
States, 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 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 partial 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 waiver page noted above.

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

    Issued on: December 23, 2013.
Victor M. Mendez,
Administrator.
[FR Doc. 2013-31236 Filed 12-27-13; 8:45 am]
BILLING CODE 4910-22-P



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