82 FR 46882 - Buy America Waiver Notification
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration Federal Register Volume 82, Issue 193 (October 6, 2017)
Federal Highway Administration
Federal Register Volume 82, Issue 193 (October 6, 2017)
| Page Range | 46882-46883 | |
| FR Document | 2017-21567 |
[Federal Register Volume 82, Number 193 (Friday, October 6, 2017)] [Notices] [Pages 46882-46883] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-21567] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Highway Administration Buy America Waiver Notification AGENCY: Federal Highway Administration (FHWA), Department of Transportation (DOT). ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: This notice provides information regarding FHWA's finding that a Buy America waiver is appropriate for the obligation of Federal-aid funds for 4 California projects involving the acquisition of vehicles under the Congestion Mitigation and Air Quality Improvement program on the condition that they be assembled in the U.S., on the basis that there are no domestic manufacturers that produce the vehicles identified in this notice in such a way that all their steel and iron elements are manufactured domestically. DATES: The effective date of the waiver is October 10, 2017. 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. Jomar Maldonado, FHWA Office of the Chief Counsel, 202-366-1373, 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 Publishing Office's database. Background This notice provides information regarding FHWA's finding that a Buy America waiver is appropriate for the obligation of Federal-aid funds for 4 California projects involving the acquisition of vehicles under the Congestion Mitigation and Air Quality Improvement (CMAQ) program. The waiver would apply to approximately 29 vehicle acquisitions on the condition that they be assembled in the United States. These involve 17 compressed natural gas solid waste trucks for the City of Visalia (CMLNI-5044(117)), 1 propane powered school bus for the City of Visalia (CMLNI-5044(119)), 6 diesel refuse trucks for the City of Tulare (CMLNI-5072(061)), and 5 compressed natural gas refuse trucks for the City of Porterville (CMLNI-5122(086)). Title 23, Code of Federal Regulations (CFR), section 635.410 requires that steel or iron materials (including protective coatings) that will be permanently incorporated in a Federal-aid project must be domestically manufactured. 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 United States. 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 manufacturers that produce the vehicles identified in this notice in such a way that all their steel and iron elements are manufactured domestically. The FHWA's Buy America [[Page 46883]] 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 United States. 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 United States, is comprised of only 45 percent of United States and Canadian content according to the National Highway Traffic Safety Administration's Part 583 American Automobile Labeling Act Report Web page at 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 domestically manufactured (from initial melting and mixing) iron and steel content. Consistent with the Consolidated Appropriations Act of 2017 (Pub. L. 115-31), FHWA published two notices seeking comments whether a waiver is appropriate on its Web site, https://www.fhwa.dot.gov/construction/contracts/cmaq170321.cfm and https://www.fhwa.dot.gov/construction/contracts/cmaq170725.cfm. The FHWA received no comments in response to the publication. Based on FHWA's conclusion that there are no domestic manufacturers that can produce the vehicles identified in this notice in such a way that all their steel and iron materials are manufactured domestically, FHWA finds that a waiver of FHWA's Buy America requirements is appropriate under the non-availability criteria (23 U.S.C. 313(b)(2) and 23 CFR 635.410(c)(2)(ii)). However, FHWA believes that it is consistent with the Buy America requirements to impose the condition that the vehicles and the vehicle components be assembled in the United States. Requiring final assembly to be performed in the United States 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-aid funds are used to support and create domestic jobs. This approach is similar to the conditional waivers previously given for various vehicle projects. Thus, so long as the final assembly of the 29 vehicles occurs in the United States, applicants to this waiver request may proceed to purchase these vehicles 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 non-availability waiver of Buy America requirements is appropriate on the condition that the vehicles identified in the notice are assembled domestically. 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; Pub. L. 110-161, 23 CFR 635.410 Issued on: October 2, 2017. Brandye L. Hendrickson, Acting Administrator, Federal Highway Administration. [FR Doc. 2017-21567 Filed 10-5-17; 8:45 am] BILLING CODE 4910-22-P
![46882 Federal Register / Vol. 82, No. 193 / Friday, October 6, 2017 / Notices
on September 29, 2017, and in other 13287 Preserve America; E.O. 13175 www.archives.gov and the Government
documents in the project records. The Consultation and Coordination with Publishing Office’s database.
FEIS and ROD and other project records Indian Tribal Governments; E.O. 11514
Background
are available by contacting FHWA and Protection and Enhancement of
UDOT at the addresses provided above. Environmental Quality; E.O. 13112 This notice provides information
The FEIS and ROD can be viewed and Invasive Species. regarding FHWA’s finding that a Buy
downloaded from the project Web site at America waiver is appropriate for the
(Catalog of Federal Domestic Assistance
http://www.udot.utah.gov/westdavis/, or Program Number 20.205, Highway Planning obligation of Federal-aid funds for 4
obtained from any contact listed above. and Construction. The regulations California projects involving the
This notice applies to all Federal implementing Executive Order 12372 acquisition of vehicles under the
agency decisions that are final as of the regarding intergovernmental consultation on Congestion Mitigation and Air Quality
issuance date of this notice and all laws Federal programs and activities apply to this Improvement (CMAQ) program. The
under which such actions were taken, program.) waiver would apply to approximately
including but not limited to: Authority: 23 U.S.C. 139(l)(1). 29 vehicle acquisitions on the condition
1. General: National Environmental Issued on: October 2, 2017.
that they be assembled in the United
Policy Act (NEPA) [42 U.S.C. 4321– States. These involve 17 compressed
Ivan Marrero,
4351]; Federal-Aid Highway Act [23 natural gas solid waste trucks for the
Division Administrator, Federal Highway City of Visalia (CMLNI–5044(117)), 1
U.S.C. 109 and 23 U.S.C. 128]. Administration, Salt Lake City, Utah.
2. Air: Clean Air Act [42 U.S.C. 7401– propane powered school bus for the City
[FR Doc. 2017–21561 Filed 10–5–17; 8:45 am]
7671q]. of Visalia (CMLNI–5044(119)), 6 diesel
BILLING CODE 4910–RY–P refuse trucks for the City of Tulare
3. Land: Section 4(f) of the
Department of Transportation Act of (CMLNI–5072(061)), and 5 compressed
1966 [49 U.S.C. 303; 23 U.S.C. 138]. natural gas refuse trucks for the City of
4. Wildlife: Endangered Species Act DEPARTMENT OF TRANSPORTATION Porterville (CMLNI–5122(086)).
[16 U.S.C. 1531–1544 and Section Federal Highway Administration Title 23, Code of Federal Regulations
1536]; Marine Mammal Protection Act (CFR), section 635.410 requires that
[16 U.S.C. 1361–1423h]; Fish and Buy America Waiver Notification steel or iron materials (including
Wildlife Coordination Act [16 U.S.C. protective coatings) that will be
661–667d]; Migratory Bird Treaty Act AGENCY: Federal Highway permanently incorporated in a Federal-
[16 U.S.C. 703–712]. Administration (FHWA), Department of aid project must be domestically
5. Historic and Cultural Resources: Transportation (DOT). manufactured. For FHWA, this means
Section 106 of the National Historic ACTION: Notice. that all the processes that modified the
Preservation Act of 1966, as amended chemical content, physical shape or
SUMMARY: This notice provides size, or final finish of the material (from
[16 U.S.C. 470f]; Archeological
information regarding FHWA’s finding initial melting and mixing, continuing
Resources Protection Act of 1977 [16
that a Buy America waiver is through the bending and coating)
U.S.C. 470aa–470mm]; Archeological
appropriate for the obligation of occurred in the United States. The
and Historic Preservation Act [16 U.S.C.
Federal-aid funds for 4 California statute and regulations create a process
469–469c]; Native American Grave
projects involving the acquisition of for granting waivers from the Buy
Protection and Repatriation Act
vehicles under the Congestion America requirements when its
(NAGPRA) [25 U.S.C. 3001–3013].
6. Social and Economic: Civil Rights Mitigation and Air Quality application would be inconsistent with
Act of 1964 [42 U.S.C. 2000(d)– Improvement program on the condition the public interest or when satisfactory
2000(d)(1)]; American Indian Religious that they be assembled in the U.S., on quality domestic steel and iron products
Freedom Act [42 U.S.C. 1996]; Farmland the basis that there are no domestic are not sufficiently available. In 1983,
Protection Policy Act (FPPA) [7 U.S.C. manufacturers that produce the vehicles FHWA determined that it was both in
4201–4209]. identified in this notice in such a way the public interest and consistent with
7. Wetlands and Water Resources: that all their steel and iron elements are the legislative intent to waive Buy
Land and Water Conservation Fund manufactured domestically. America for manufactured products
(LWCF) [16 U.S.C. 4601–4604]; Safe DATES: The effective date of the waiver other than steel manufactured products.
Drinking Water Act (SDWA) [42 U.S.C. is October 10, 2017. However, FHWA’s national waiver for
300f–300j–26)]; Wild and Scenic Rivers FOR FURTHER INFORMATION CONTACT: For manufactured products does not apply
Act [16 U.S.C. 1271–1287]. questions about this notice, please to the requests in this notice because
8. Hazardous Materials: contact Mr. Gerald Yakowenko, FHWA they involve predominately steel and
Comprehensive Environmental Office of Program Administration, 202– iron manufactured products. The
Response, Compensation, and Liability 366–1562, or via email at FHWA’s Buy America requirements do
Act (CERCLA) [42 U.S.C. 9601–9675]; Gerald.Yakowenko@dot.gov. For legal not have special provisions for applying
Superfund Amendments and questions, please contact Mr. Jomar Buy America to ‘‘rolling stock’’ such as
Reauthorization Act of 1986 (SARA); Maldonado, FHWA Office of the Chief vehicles or vehicle components (see 49
Resource Conservation and Recovery Counsel, 202–366–1373, or via email at U.S.C. 5323(j)(2)(C), 49 CFR 661.11, and
Act (RCRA) [42 U.S.C. 6901–6992(k)] Jomar.Maldonado@dot.gov. Office hours 49 U.S.C. 24405(a)(2)(C) for examples of
asabaliauskas on DSKBBXCHB2PROD with NOTICES
9. Executive Orders: E.O. 11990 for the FHWA are from 8:00 a.m. to 4:30 Buy America rolling stock provisions for
Protection of Wetlands; E.O. 11988 p.m., e.t., Monday through Friday, other DOT agencies).
Floodplain Management; E.O. 12898, except Federal holidays. Based on all the information available
Federal Actions to Address SUPPLEMENTARY INFORMATION: to the agency, FHWA concludes that
Environmental Justice in Minority there are no manufacturers that produce
Populations and Low Income Electronic Access the vehicles identified in this notice in
Populations; E.O. 11593 Protection and An electronic copy of this document such a way that all their steel and iron
Enhancement of Cultural Resources; may be downloaded from the Federal elements are manufactured
E.O. 13007 Indian Sacred Sites; E.O. Register’s home page at http:// domestically. The FHWA’s Buy America
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![Federal Register / Vol. 82, No. 193 / Friday, October 6, 2017 / Notices 46883
requirements were tailored to the types diminish the purpose of the Buy used in the construction of passenger
of products that are typically used in America requirement. Moreover, in rail vehicles to be tested in accordance
highway construction, which generally today’s economic environment, the Buy with American Society for Testing and
meet the requirement that steel and iron America requirement is especially Materials (ASTM) E 162.98 with a
materials be manufactured domestically. significant in that it will ensure that radiant panel index of Is ≤ 25, and
In today’s global industry, vehicles are Federal-aid funds are used to support ASTM E 662–01 with a specific optical
assembled with iron and steel and create domestic jobs. This approach density Ds (4.0) ≤ 100.
components that are manufactured all is similar to the conditional waivers In constructing twenty passenger
over the world. The FHWA is not aware previously given for various vehicle coaches for use in phase 1 of the
of any domestically produced vehicle projects. Thus, so long as the final Brightline/All Aboard Florida (AAF)
on the market that meets FHWA’s Buy assembly of the 29 vehicles occurs in passenger service between Miami and
America requirement to have all its iron the United States, applicants to this West Palm Beach, Siemens used a ‘‘K-
and steel be manufactured exclusively waiver request may proceed to purchase Flex Eco’’ material that has been tested
in the United States. For example, the these vehicles consistent with the Buy with the results of Is = 202 and Ds (4.0)
Chevrolet Volt, which was identified by America requirement. = 131. Siemens is requesting a waiver
many commenters in a November 21, In accordance with the provisions of from Appendix B as applied to these
2011, Federal Register Notice (76 FR section 117 of the ‘‘Safe, Accountable, two requirements, asserting that the
72027) as a car that is made in the Flexible, Efficient Transportation Equity ‘‘fire risk . . . is negligible and an
United States, is comprised of only 45 Act: A Legacy for Users, Technical equivalent level of safety is maintained’’
percent of United States and Canadian Corrections Act of 2008’’ (Pub. L. 110– considering the end use configuration of
content according to the National 244), FHWA is providing this notice of the material and the small amount of the
Highway Traffic Safety Administration’s its finding that a non-availability waiver material used’’ Siemens further
Part 583 American Automobile Labeling of Buy America requirements is indicates it intends the waiver to
Act Report Web page at http:// appropriate on the condition that the provide sufficient information to
www.nhtsa.gov/Laws+&+Regulations/ vehicles identified in the notice are demonstrate an equivalent level of
Part+583+American+Automobile assembled domestically. The FHWA safety in order to prevent the
+Labeling+Act+(AALA)+Reports. invites public comment on this finding replacement of the K-Flex Eco
Moreover, there is no indication of how for an additional 15 days following the insulation material in the 20 coaches.
much of this 45 percent content is effective date of the finding. Comments Siemens also notes that granting the
domestically manufactured (from initial may be submitted to FHWA’s Web site requested relief would have a
melting and mixing) iron and steel via the link provided to the waiver page considerable positive impact on the
content. noted above. project schedule and associated costs.
Consistent with the Consolidated Authority: 23 U.S.C. 313; Pub. L. 110–161, In support of its petition, Siemens
Appropriations Act of 2017 (Pub. L. 23 CFR 635.410 attached two documents: (1) AAF Coach
115–31), FHWA published two notices Issued on: October 2, 2017. SFT Water Pipe Insulation Discussion
seeking comments whether a waiver is V5 (A 13-page presentation showing
Brandye L. Hendrickson,
appropriate on its Web site, https:// pipe insulation material, its usage on
Acting Administrator, Federal Highway
www.fhwa.dot.gov/construction/ AAF coaches, for drain and fresh water
Administration.
contracts/cmaq170321.cfm and https:// pipes, as well as locations of the usage);
[FR Doc. 2017–21567 Filed 10–5–17; 8:45 am]
www.fhwa.dot.gov/construction/ and (2) a 53-page document titled, ‘‘Fire
BILLING CODE 4910–22–P
contracts/cmaq170725.cfm. The FHWA Safety Analysis; Use of K-Flex Eco
received no comments in response to Insulation in All Aboard Florida
the publication. Based on FHWA’s Coaches.’’ (SII–ENA–215 Rev. B). This
DEPARTMENT OF TRANSPORTATION
conclusion that there are no domestic document provided the analysis
manufacturers that can produce the Federal Railroad Administration supporting Siemens’ safety equivalency
vehicles identified in this notice in such claim.
a way that all their steel and iron [Docket Number FRA–2017–0085] A copy of the petition, as well as any
materials are manufactured written communications concerning the
Petition for Waiver of Compliance
domestically, FHWA finds that a waiver petition, is available for review online at
of FHWA’s Buy America requirements In accordance with part 211 of Title www.regulations.gov and in person at
is appropriate under the non-availability 49 Code of Federal Regulations (CFR), the U.S. Department of Transportation’s
criteria (23 U.S.C. 313(b)(2) and 23 CFR this document provides the public (DOT) Docket Operations Facility, 1200
635.410(c)(2)(ii)). However, FHWA notice that by a document dated August New Jersey Avenue SE., W12–140,
believes that it is consistent with the 22, 2017, Siemens Mobility Division Washington, DC 20590. The Docket
Buy America requirements to impose Rolling Stock (Siemens) has petitioned Operations Facility is open from 9 a.m.
the condition that the vehicles and the the Federal Railroad Administration to 5 p.m., Monday through Friday,
vehicle components be assembled in the (FRA) for a waiver of compliance from except Federal Holidays.
United States. Requiring final assembly the requirements of 49 CFR 238.103 Interested parties are invited to
to be performed in the United States is (Fire safety). FRA assigned the petition participate in these proceedings by
asabaliauskas on DSKBBXCHB2PROD with NOTICES
consistent with past guidance to FHWA docket number FRA–2017–0085. submitting written views, data, or
Division Offices on manufactured Section 238.103 of Title 49 of the CFR comments. FRA does not anticipate
products (see Memorandum on Buy requires materials used in the scheduling a public hearing in
America Policy Response, Dec. 22, 1997, construction of passenger cars to meet connection with these proceedings since
http://www.fhwa.dot.gov/ the test methods and performance the facts do not appear to warrant a
programadmin/contracts/122297.cfm). criteria for the flammability and smoke hearing. If any interested parties desire
A waiver of the Buy America emission characteristics of Appendix B an opportunity for oral comment and a
requirement without any regard to to part 238. Appendix B requires all public hearing, they should notify FRA,
where the vehicle is assembled would thermal and acoustic insulation material in writing, before the end of the
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Document Created: 2017-10-06 00:09:14
Document Modified: 2017-10-06 00:09:14
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice. | |
| Dates | The effective date of the waiver is October 10, 2017. | |
| 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. Jomar Maldonado, FHWA Office of the Chief Counsel, 202-366-1373, 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. | |
| FR Citation | 82 FR 46882 |
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