83 FR 16421 - Buy America Waiver Notification
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration Federal Register Volume 83, Issue 73 (April 16, 2018)
Federal Highway Administration
Federal Register Volume 83, Issue 73 (April 16, 2018)
| Page Range | 16421-16422 | |
| FR Document | 2018-07901 |
[Federal Register Volume 83, Number 73 (Monday, April 16, 2018)] [Notices] [Pages 16421-16422] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-07901] ======================================================================= ----------------------------------------------------------------------- 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 issuance of a Buy America waiver for the obligation of Federal-aid funds for 151 State projects involving the acquisition of vehicles and equipment on the condition that they be assembled in the U.S. DATES: The waiver is issued as of April 17, 2018. 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 at http://www.access.thefederalregister.org/nara. Background This notice provides information regarding FHWA's decision to issue a Buy America waiver for the obligation of Federal-aid funds for 151 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 United States. The waiver would apply to approximately 955 vehicle and equipment acquisitions. The requests for vehicle-related waivers received between April 2016 and December 2016 are incorporated by reference into this notice. These requests are available on FHWA's Buy America website at the following locations:April to June, 2016: https://www.fhwa.dot.gov/construction/contracts/cmaq161207.cfm; July to September, 2016: https://www.fhwa.dot.gov/construction/contracts/cmaq170321.cfm; and October to December, 2016: https://www.fhwa.dot.gov/construction/contracts/cmaq170725.cfm. 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 (CFR), Sec. 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 [[Page 16422]] 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. The FHWA's national waiver for manufactured products does not apply to the requests in this notice because these 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 equipment (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). On April 18, 2017, the President issued Executive Order (E.O.) 13788--Buy American and Hire American. Section 2(a) of the E.O. 13788 establishes as a policy of the executive branch to ``maximize, consistent with law. . .the use of goods, products, and materials produced in the United States.'' Section 3(b)(i) requires every agency to ``assess the. . .implementation of, and compliance with Buy American Laws'' within their jurisdictions. Section 3(b)(ii) requires agencies to assess the use of waivers within their agencies by type and impact on domestic jobs and manufacturing. Section 3(b)(iii) requires agencies to develop and propose policies to ensure that, to the extent permitted by law, Federal financial assistance awards maximize the use of materials produced in the United States. In response to these E.O. 13788 requirements, the FHWA is evaluating how to revise its Buy America policies and procedures, including the process and manner in which it decides whether to grant waivers for vehicles and equipment. This evaluation may result in delays in decisions on whether to grant Buy America waivers in the future. Although FHWA has not found manufacturers that produce vehicles and equipment in such a way that all their steel and iron elements are manufactured domestically, the Agency is evaluating the process and manner in which it considers these waivers to ensure that it is consistent with the intent and purpose of E.O. 13788. The FHWA is aware that in today's global industry, vehicles are assembled with iron and steel components manufactured all over the world. The Agency also understands the difficulty of identifying vehicles that have 100% components made 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 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.\1\ 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. --------------------------------------------------------------------------- \1\ http://www.nhtsa.gov/Laws+&+Regulations/Part+583+American+Automobile+Labeling+Act+(AALA)+Reports. --------------------------------------------------------------------------- However, the policy behind E.O. 13788 is to help stimulate economic growth, create good jobs at decent wages, strengthen our middle class, and support the American manufacturing and defense industrial bases. Sec. 2(a), E.O. 13788. This means that FHWA Buy America policies should be interpreted and applied in a manner that fosters innovative approaches that would increase the manufacture of compliant domestic steel and iron products and consistent with 23 U.S.C. 313. Unlike other waiver requests, the requests for vehicle and equipment waivers have been for recurrent products. The products waived in the past have been of similar type and kind, yet there have been no changes in the manufacturing process to produce Buy America compliant products or products maximizing Buy America compliant content. The FHWA's practice of approving waiver requests for these recurrent project types could be setting the expectation that FHWA will always grant waivers for these projects, discouraging innovative approaches and job creation in the domestic steel and iron industry for this sector. The FHWA is re-evaluating the process and manner in which it decides whether to grant waivers for vehicles and vehicle-related equipment. This change will not affect the approval of a waiver for vehicles and equipment received during April to December, 2016 timeframe. The projects in these lists were submitted prior to the issuance of the E.O. and have been published for informal comment consistent with the Consolidated Appropriations Act of 2017 (Pub. L. 115-31) (see publications for December 7, 2016,\2\ March 21, 2017,\3\ and July 25, 2017 \4\). The FHWA received no comments in response to these publications. Because FHWA has not found domestic manufacturers that can produce the vehicles and equipment 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).\5\ 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. Thus, so long as the final assembly of the 151 State projects occurs in the United States, applicants to this waiver request may proceed to purchase these vehicles and equipment. --------------------------------------------------------------------------- \2\ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=139. \3\ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=147. \4\ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=153. \5\ http://www.fhwa.dot.gov/programadmin/contracts/122297.cfm. --------------------------------------------------------------------------- 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 and equipment identified in the notice are assembled domestically. The FHWA invites public comment on this finding for an additional 15 days following the issued date of the finding. Comments may be submitted to FHWA's website 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: April 11, 2018. Brandye L. Hendrickson, Acting Administrator, Federal Highway Administration. [FR Doc. 2018-07901 Filed 4-11-18; 4:15 pm] BILLING CODE 4910-22-P
![Federal Register / Vol. 83, No. 73 / Monday, April 16, 2018 / Notices 16421
An agency may not conduct or of its studies and coordinate, sponsor, or jomar.maldonado@dot.gov. Office hours
sponsor, and a person is not required to oversee projects, studies, events, or for the FHWA are from 8:00 a.m. to 4:30
respond to, a collection of information other activities that it deems desirable p.m., e.t., Monday through Friday,
unless it displays a currently valid and necessary in fulfilling its functions. except Federal holidays.
control number. The Commission consists of seven SUPPLEMENTARY INFORMATION:
Please direct your written comments members appointed by the President, by
to Pamela Dyson, Director/Chief and with the advice and consent of the Electronic Access
Information Officer, Securities and Senate. The members of the An electronic copy of this document
Exchange Commission, c/o Remi Pavlik- Commission shall represent the public may be downloaded from the Federal
Simon, 100 F Street NE, Washington, interest and shall be selected from a Register’s home page at http://
DC 20549; or send an email to: PRA_ cross section of educational, www.archives.gov and the Government
Mailbox@sec.gov. communications, cultural, scientific, Publishing Office’s database at http://
Dated: April 9, 2018. technical, public service, labor, www.access.gpo.gov/nara.
Eduardo A. Aleman, business, and professional backgrounds. Background
Assistant Secretary.
Not more than four members shall be
from any one political party. The This notice provides information
[FR Doc. 2018–07786 Filed 4–13–18; 8:45 am]
President designates a member to chair regarding FHWA’s decision to issue a
BILLING CODE 8011–01–P
the Commission. Buy America waiver for the obligation
The current members of the of Federal-aid funds for 151 State
Commission are: Mr. Sim Farar of projects involving the acquisition of
DEPARTMENT OF STATE California, Chairman; Mr. William Hybl vehicles (including sedans, vans,
of Colorado, Vice Chairman; Ms. Anne pickups, trucks, buses, and street
[Public Notice: 10388]
Terman Wedner of Illinois; and Ms. sweepers) and equipment (such as trail
U.S. Advisory Commission on Public Georgette Mosbacher of New York. grooming equipment) on the condition
Diplomacy; Notice of Meeting Three seats on the Commission are that they be assembled in the United
currently vacant. States. The waiver would apply to
The U.S. Advisory Commission on approximately 955 vehicle and
To request further information about
Public Diplomacy will hold a public equipment acquisitions. The requests
the meeting or the U.S. Advisory
meeting from 10:30 a.m. until 12:00 for vehicle-related waivers received
Commission on Public Diplomacy, you
p.m., Tuesday, May 8, 2018 at the U.S. between April 2016 and December 2016
may contact its Executive Director, Dr.
Capitol Visitor Center, room 203–02 are incorporated by reference into this
Shawn Powers, at PowersSM@state.gov.
(First St NE, Washington, DC 20515). notice. These requests are available on
The public meeting will be on The Shawn M. Powers, FHWA’s Buy America website at the
Future of American Spaces and feature Executive Director, Advisory Commission on following locations:
panelists discussing the role that nearly Public Diplomacy, Department of State. • April to June, 2016: https://
700 American Spaces, including [FR Doc. 2018–07847 Filed 4–13–18; 8:45 am] www.fhwa.dot.gov/construction/
Binational Centers, play in supporting BILLING CODE 4710–45–P contracts/cmaq161207.cfm;
engagement with foreign publics around • July to September, 2016: https://
the world. These diverse venues are the www.fhwa.dot.gov/construction/
U.S. government’s primary public DEPARTMENT OF TRANSPORTATION contracts/cmaq170321.cfm; and
locations abroad and foster ongoing • October to December, 2016: https://
people-to-people connections between Federal Highway Administration www.fhwa.dot.gov/construction/
the United States and foreign audiences. contracts/cmaq170725.cfm.
This meeting is open to the public, Buy America Waiver Notification These projects are being undertaken to
members and staff of Congress, the State implement air quality improvement,
Department, Defense Department, the AGENCY: Federal Highway safety, and mobility goals under
media, and other governmental and Administration (FHWA), Department of FHWA’s Congestion Mitigation and Air
non-governmental organizations. An Transportation (DOT). Quality Improvement Program and the
RSVP is required. To attend and make ACTION: Notice. Recreational Trails Program.
any requests for reasonable Title 23, Code of Federal Regulations
SUMMARY: This notice provides (CFR), § 635.410 requires that steel or
accommodation, email Michelle Bowen
information regarding FHWA’s issuance iron materials (including protective
at BowenMC1@state.gov by 5 p.m. on
of a Buy America waiver for the coatings) that will be permanently
Friday, May 4, 2018. Please arrive for
obligation of Federal-aid funds for 151 incorporated in a Federal-aid project
the meeting by 10:15 a.m. to allow for
State projects involving the acquisition must be domestically manufactured. For
a prompt start.
The United States Advisory of vehicles and equipment on the FHWA, this means that all the processes
Commission on Public Diplomacy condition that they be assembled in the that modified the chemical content,
appraises U.S. Government activities U.S. physical shape or size, or final finish of
intended to understand, inform, and DATES: The waiver is issued as of April the material (from initial melting and
influence foreign publics. The Advisory 17, 2018. mixing, continuing through the bending
Commission may conduct studies, FOR FURTHER INFORMATION CONTACT: For and coating) occurred in the United
inquiries, and meetings, as it deems questions about this notice, please States. The statute and regulations
srobinson on DSK3G9T082PROD with NOTICES
necessary. It may assemble and contact Mr. Gerald Yakowenko, FHWA create a process for granting waivers
disseminate information and issue Office of Program Administration, 202– from the Buy America requirements
reports and other publications, subject 366–1562, or via email at when its application would be
to the approval of the Chairperson, in Gerald.Yakowenko@dot.gov. For legal inconsistent with the public interest or
consultation with the Executive questions, please contact Mr. Jomar when satisfactory quality domestic steel
Director. The Advisory Commission Maldonado, FHWA Office of the Chief and iron products are not sufficiently
may undertake foreign travel in pursuit Counsel, 202–366–1373, or via email at available. In 1983, FHWA determined
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![16422 Federal Register / Vol. 83, No. 73 / Monday, April 16, 2018 / Notices
that it was both in the public interest Notice (76 FR 72027) as a car that is produce the vehicles and equipment
and consistent with the legislative made in the United States, is comprised identified in this notice in such a way
intent to waive Buy America for of only 45 percent of United States and that all their steel and iron materials are
manufactured products other than steel Canadian content according to the manufactured domestically, FHWA
manufactured products. The FHWA’s National Highway Traffic Safety finds that a waiver of FHWA’s Buy
national waiver for manufactured Administration’s part 583 American America requirements is appropriate
products does not apply to the requests Automobile Labeling Act Report web under the non-availability criteria (23
in this notice because these involve page.1 There is no indication of how U.S.C. 313(b)(2) and 23 CFR
predominately steel and iron much of this 45 percent content is U.S. 635.410(c)(2)(ii)). However, FHWA
manufactured products. The FHWA’s manufactured (from initial melting and believes that it is consistent with the
Buy America requirements do not have mixing) iron and steel content. Buy America requirements to impose
special provisions for applying Buy However, the policy behind E.O. the condition that the vehicles and the
America to ‘‘rolling stock’’ such as 13788 is to help stimulate economic vehicle components be assembled in the
vehicles or equipment (see 49 U.S.C. growth, create good jobs at decent United States. Requiring final assembly
5323(j)(2)(C), 49 CFR 661.11, and 49 wages, strengthen our middle class, and to be performed in the United States is
U.S.C. 24405(a)(2)(C) for examples of support the American manufacturing consistent with past guidance to FHWA
Buy America rolling stock provisions for and defense industrial bases. Sec. 2(a), Division Offices on manufactured
other DOT agencies). E.O. 13788. This means that FHWA Buy products (see Memorandum on Buy
On April 18, 2017, the President America policies should be interpreted America Policy Response, Dec. 22,
issued Executive Order (E.O.) 13788— and applied in a manner that fosters 1997).5 Moreover, in today’s economic
Buy American and Hire American. innovative approaches that would environment, the Buy America
Section 2(a) of the E.O. 13788 increase the manufacture of compliant requirement is especially significant in
establishes as a policy of the executive domestic steel and iron products and that it will ensure that Federal-aid funds
branch to ‘‘maximize, consistent with consistent with 23 U.S.C. 313. Unlike are used to support and create domestic
law. . .the use of goods, products, and other waiver requests, the requests for jobs. Thus, so long as the final assembly
materials produced in the United vehicle and equipment waivers have of the 151 State projects occurs in the
States.’’ Section 3(b)(i) requires every been for recurrent products. The United States, applicants to this waiver
agency to ‘‘assess products waived in the past have been request may proceed to purchase these
the. . .implementation of, and of similar type and kind, yet there have vehicles and equipment.
compliance with Buy American Laws’’ been no changes in the manufacturing In accordance with the provisions of
within their jurisdictions. Section process to produce Buy America section 117 of the ‘‘Safe, Accountable,
3(b)(ii) requires agencies to assess the compliant products or products Flexible, Efficient Transportation Equity
use of waivers within their agencies by maximizing Buy America compliant Act: A Legacy for Users, Technical
type and impact on domestic jobs and content. The FHWA’s practice of Corrections Act of 2008’’ (Pub. L. 110–
manufacturing. Section 3(b)(iii) requires approving waiver requests for these 244), FHWA is providing this notice of
agencies to develop and propose recurrent project types could be setting its finding that a non-availability waiver
policies to ensure that, to the extent the expectation that FHWA will always of Buy America requirements is
permitted by law, Federal financial grant waivers for these projects, appropriate on the condition that the
assistance awards maximize the use of discouraging innovative approaches and vehicles and equipment identified in
materials produced in the United States. job creation in the domestic steel and the notice are assembled domestically.
In response to these E.O. 13788 iron industry for this sector. The FHWA invites public comment on
requirements, the FHWA is evaluating The FHWA is re-evaluating the this finding for an additional 15 days
how to revise its Buy America policies process and manner in which it decides following the issued date of the finding.
and procedures, including the process whether to grant waivers for vehicles Comments may be submitted to FHWA’s
and manner in which it decides whether and vehicle-related equipment. This website via the link provided to the
to grant waivers for vehicles and change will not affect the approval of a waiver page noted above.
equipment. This evaluation may result waiver for vehicles and equipment
in delays in decisions on whether to received during April to December, (Authority: 23 U.S.C. 313; Pub. L. 110–161,
grant Buy America waivers in the 23 CFR 635.410)
2016 timeframe. The projects in these
future. lists were submitted prior to the Issued on: April 11, 2018.
Although FHWA has not found issuance of the E.O. and have been Brandye L. Hendrickson,
manufacturers that produce vehicles published for informal comment Acting Administrator, Federal Highway
and equipment in such a way that all consistent with the Consolidated Administration.
their steel and iron elements are Appropriations Act of 2017 (Pub. L. [FR Doc. 2018–07901 Filed 4–11–18; 4:15 pm]
manufactured domestically, the Agency 115–31) (see publications for December BILLING CODE 4910–22–P
is evaluating the process and manner in 7, 2016,2 March 21, 2017,3 and July 25,
which it considers these waivers to 2017 4). The FHWA received no
ensure that it is consistent with the comments in response to these DEPARTMENT OF TRANSPORTATION
intent and purpose of E.O. 13788. The publications. Because FHWA has not
FHWA is aware that in today’s global found domestic manufacturers that can Federal Motor Carrier Safety
industry, vehicles are assembled with Administration
iron and steel components
srobinson on DSK3G9T082PROD with NOTICES
1 http://www.nhtsa.gov/Laws+&+Regulations/
manufactured all over the world. The Part+583+American+Automobile+Labeling
Sunshine Act Meetings; Unified Carrier
Agency also understands the difficulty +Act+(AALA)+Reports. Registration Plan Board of Directors
2 https://www.fhwa.dot.gov/construction/
of identifying vehicles that have 100% AGENCY:Federal Motor Carrier Safety
contracts/waivers.cfm?id=139.
components made in the U.S. For 3 https://www.fhwa.dot.gov/construction/ Administration (FMCSA), DOT.
example, the Chevrolet Volt, which was contracts/waivers.cfm?id=147.
identified by many commenters in a 4 https://www.fhwa.dot.gov/construction/ 5 http://www.fhwa.dot.gov/programadmin/
November 21, 2011, Federal Register contracts/waivers.cfm?id=153. contracts/122297.cfm.
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Document Created: 2018-04-14 02:19:15
Document Modified: 2018-04-14 02:19:15
| 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 waiver is issued as of April 17, 2018. | |
| 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 | 83 FR 16421 |
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