Notice2021-21293
Buy America Waiver Notification
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 30, 2021
Effective
October 1, 2021
Issuing agencies
Transportation DepartmentFederal Highway Administration
Abstract
This notice provides information regarding FHWA's finding that it is appropriate to grant a Buy America waiver to the Iowa Department of Transportation (Iowa DOT) for procurement of foreign iron and steel components for two elevators or let-down structures for the pedestrian bridge associated with the I-74 Mississippi River Bridge Project in Bettendorf, Iowa, specifically including: (i) Traction elevator components; (ii) elevator guide rails; and (iii) certain auxiliary components of the elevators or let-down structures.
Full Text
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<title>Federal Register, Volume 86 Issue 187 (Thursday, September 30, 2021)</title>
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[Federal Register Volume 86, Number 187 (Thursday, September 30, 2021)]
[Notices]
[Pages 54281-54283]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-21293]
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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
it is appropriate to grant a Buy America waiver to the Iowa Department
of Transportation (Iowa DOT) for procurement of foreign iron and steel
components for two elevators or let-down structures for the pedestrian
bridge associated with the I-74 Mississippi River Bridge Project in
Bettendorf, Iowa, specifically including: (i) Traction elevator
components; (ii) elevator guide rails; and (iii) certain auxiliary
components of the elevators or let-down structures.
DATES: The effective date of the waiver is October 1, 2021.
FOR FURTHER INFORMATION CONTACT: For questions about this notice,
please contact Mr. Brian Hogge, FHWA Office of Infrastructure, 202-366-
1562, or via email at <a href="/cdn-cgi/l/email-protection#efad9d868e81c1a78088888aaf8b809bc1888099"><span class="__cf_email__" data-cfemail="f6b4849f9798d8be99919193b6929982d8919980">[email protected]</span></a>. For legal questions, please
contact Mr. Patrick C. Smith, FHWA Office of the Chief Counsel, 202-
366-1345, or via email at <a href="/cdn-cgi/l/email-protection#a8f8c9dcdac1cbc386eb86fbc5c1dcc0e8ccc7dc86cfc7de"><span class="__cf_email__" data-cfemail="cf9faebbbda6aca4e18ce19ca2a6bba78faba0bbe1a8a0b9">[email protected]</span></a>. Office hours for
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: <a href="http://www.FederalRegister.gov">www.FederalRegister.gov</a> and the
Government Publishing Office's database at: <a href="http://www.GovInfo.gov">www.GovInfo.gov</a>.
Background
FHWA's Buy America regulation in 23 CFR 635.410 requires a domestic
manufacturing process for any steel or iron products (including
protective coatings) that are permanently incorporated in a Federal-aid
construction project. The regulation 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 produced in the United States in sufficient
and reasonably available quantities. This notice provides information
regarding FHWA's finding that it is appropriate to grant Iowa DOT a Buy
America waiver for procurement
[[Page 54282]]
of foreign iron and steel components for two elevators or let-down
structures for the pedestrian bridge associated with the I-74
Mississippi River Bridge Project in Bettendorf, Iowa, specifically
including: (i) Traction elevator components; (ii) elevator guide rails;
and (iii) certain auxiliary components of the elevators or let-down
structures.
Background on the I-74 Mississippi River Bridge Project: The city
of Bettendorf, Iowa, through Iowa DOT, is seeking a Buy America waiver
for two pedestrian elevators, or let-down structures, needed for a
pedestrian bridge associated with the I-74 Mississippi River Bridge
Project in Bettendorf, Iowa. The waiver request is for procurement of
foreign iron and steel components for construction of the two
elevators, specifically including: (i) Traction elevator components;
(ii) elevator guide rails; and (iii) certain auxiliary components of
the elevators or let-down structures.
The two elevators are part of the approximately $1.2 billion I-74
Mississippi River Bridge Reconstruction Project. The elevators are
needed to meet accessibility requirements under the Americans with
Disabilities Act, 42 U.S.C. 12101, et seq., for a new pedestrian
bridge. The elevators also provide additional safety for pedestrians
and bicyclists. The pedestrian bridge and elevators will provide links
to both the Illinois and Iowa river trail network.
The Pedestrian Bridge and elevators are included under an
approximately $2.2 million contract. The city originally estimated that
the elevators would cost approximately $427,000. This contract is 100
percent funded by the city of Bettendorf, Iowa, with no Federal
funding. However, the pedestrian bridge and structures connecting the
bridge to the trail network were included under the final environmental
impact statement and record for the overall I-74 Mississippi River
Bridge Project. Therefore, under 23 U.S.C. 313(g), FHWA's Buy America
provision applies to the contract and letdown structure. All other
contracts associated with the approximately $1.2 billion project are
expected to comply with Buy America requirements.
Background on Waiver Request: The Iowa DOT originally submitted a
Buy America waiver request letter to FHWA for certain components of the
elevators in March 2020. Prior to requesting a waiver, the city of
Bettendorf unsuccessfully attempted to identify domestic manufacturers
for these products. The Iowa DOT reported to FHWA in the waiver request
letter that the city contacted 11 U.S. elevator manufacturers, but none
of them could produce elevators meeting the needs of the project using
only U.S. steel. The March 2020 request letter sought a waiver for
traction elevator components and elevator guide rails.
The elevators identified by Iowa DOT and the city as meeting the
needs of the project are produced by KONE Oyj, a company with
headquarters in Finland, but also with operations and facilities in the
United States. Iowa DOT identifies the elevators as two Monospace 500
model elevators with glass rear walls.
After receiving the waiver request, in April 2020 FHWA requested
that the Iowa DOT and the city of Bettendorf answer questions about
their previous search for Buy America compliant products. FHWA also
requested that they continue seeking to maximize the use of goods,
products, and materials produced in the U.S. on the project. In
response to this request and later follow-up questions from FHWA, the
city of Bettendorf attempted over several additional months to identify
domestic manufacturers that it had not identified in its original
search, or, if full compliance was not possible, foreign manufacturers
that could maximize use of domestic content by using greater quantities
of U.S. steel. These additional search activities continued between
April and August of 2020, but the city did not identify compliant
products.
In August 2020, Iowa DOT responded to FHWA's questions. It
explained that none of the manufacturers Iowa DOT or the city of
Bettendorf contacted could satisfy Buy America requirements. It also
explained that none of the manufacturers could provide reliable
certifications of domestic content percentages (to show maximization of
domestic content). After completing its additional research, Iowa DOT
expanded its waiver request to include certain additional components of
the elevator letdown structures. Iowa DOT explained that it could not
find a manufacturer to meet Buy America requirements for additional
auxiliary ``components [in the elevator letdown structures], such as
mechanical air handling equipment.'' The contacted manufacturers
explained that they were unable to verify the origin of source of
materials to satisfy FHWA's Buy America requirements. Iowa DOT
explained that these components are not frequently used in highway
construction projects. Instead, they are predominantly used for
commercial applications around the world, in which material source of
origin certifications and Buy America requirements are not applicable.
The August 2020 letter from Iowa also explained that KONE Oyj was
asked to review the potential for assembling non-standard elevators
that would have a greater domestic steel and iron content to meet Buy
America requirements. KONE Oyj provided an alternative design, but
could still neither meet the Buy America requirements nor guarantee or
certify the precise amount of domestic content. Moreover, the
alternative design provided by KONE Oyj would not meet project
requirements in terms of size, capacity, or safety. Regarding safety,
elevators designed with unique, customized parts would be more
difficult to maintain, which could impact the safety and reliability of
their operation.
Iowa DOT's August 2020 letter also addressed alternative designs
that were considered such as rack and pinion elevators. Iowa DOT
explained that rack-and-pinion elevators, which are used primarily as
freight elevators, were not suitable to the elevator's intended purpose
of passenger transport. Moreover, adding structural elements to the
project design to support rack-and-pinion elevators could increase
project costs by $2 million. It did not consider this cost increase
feasible. An alternative design would also result in significant delays
for the project. At the time of the letter, the I-74 Mississippi River
Bridge was scheduled to open to Iowa-bound vehicle traffic at the end
of 2020 and to Illinois-bound vehicle traffic before the end of 2021.
The bridge subsequently opened to Iowa-bound traffic in December 2020
and, as of September 2021, is currently facilitating two-way traffic
(with two lanes in each direction) until construction is complete. The
Illinois-bound section of the bridge is in the final stages of
construction and is scheduled to open in December 2021.
In the August 2020 letter Iowa DOT also reported that other
alternative designs were considered, but also could not fully comply
with Buy America requirements for all components and would result in
significantly higher construction costs and lengthy project redesign.
Thus, Iowa DOT did not find justification for pursuing the alternative
designs.
Iowa DOT also explained the current fiscal situation in the city of
Bettendorf in the August 2020 letter. It explained that the COVID-19
public health emergency has caused financial hardship for the city and
that any additional costs associated with Buy America compliance, such
as completely redesigning the elevators or adding structural
components, would impact the city's ability to complete the project and
fund necessary services.
[[Page 54283]]
In October 2020, FHWA again contacted Iowa DOT with additional
questions regarding its efforts to comply with Buy America and
Executive Order 13788, 82 FR 18837 (Apr. 21, 2017), which was later
revoked by Executive Order 14005. 86 FR 7475 (Jan. 28, 2021). FHWA also
sought clarity on the scope of waiver the request. Later that month,
Iowa DOT provided answers to FHWA's questions with additional
information on its compliance efforts and a cost estimate sheet
identifying all items for which it seeks a waiver (Exhibit D). A link
to Exhibit D is included on the Notice of Buy America Waiver Request
published on FHWA's website on January 5, 2021, as described below. All
items included in the waiver request are identified as not meeting Buy
America in the first column of Exhibit D. The estimated total cost of
the waiver items is approximately $768,000. FHWA removed the cost
estimates for individual line items in Exhibit D to maintain the
confidentiality of the city's procurement-sensitive information during
its solicitation process.
In accordance with the Further Consolidated Appropriations Act,
2020 (Pub. L. 116-94), FHWA published a notice seeking comment on
whether a waiver was appropriate on its website, <a href="https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=156">https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=156</a>, on January
5, 2020.
The FHWA received 36 comments in response to the publication. Seven
commenters opposed the waiver and 29 commenters generally expressed
support for it. Six of the comments opposing the waiver did not offer
any information on the availability of compliant products, nor did they
suggest specific, additional actions that Iowa DOT could take to
maximize its use of goods, products, and materials produced in the U.S.
Another commenter opposing the waiver suggested obtaining additional
certification documentation from suppliers but did not offer specific
information on compliant products or means of identifying them. Thus,
Iowa DOT did not receive any new information indicating that the
subject parts could be produced by domestic manufacturers.
Although Iowa DOT did not identify compliant components for the
let-down structures, it provided information to FHWA supporting its
waiver request, including:
<bullet> Information describing its efforts to obtain the domestic
content characteristics of the manufactured products needed;
<bullet> Information supporting the necessity of these specific
let-down structures for the project's intended purpose of passenger
transport and demonstrating that alternative designs were infeasible;
<bullet> Information documenting efforts to locate compliant
manufactured products;
<bullet> Information documenting efforts to maximize domestic
content even if full compliance was not possible, including efforts to
have foreign manufacturers incorporate domestic steel; and
<bullet> Information describing the effects of denying the request.
The following sections summarize relevant information from Iowa
DOT.
Although ultimately unsuccessful, Iowa DOT made substantial efforts
to find suitable Buy America compliant components for the let-down
structures.
Timing and Need for a Waiver. The Iowa DOT maintains that approval
of a Buy America waiver for the relevant components of the let-down
structures is now critical to maintain the schedule of ongoing
construction on the project. The I-74 Mississippi River Bridge opened
to Iowa-bound vehicle traffic at the end of 2020 and is scheduled to
open to Illinois-bound vehicle traffic before the end of 2021. Iowa DOT
believes it has exhausted its options for domestic alternatives.
Executive Order 14005. Executive Order 14005, ``Ensuring the Future
is Made in All of America by All of America's Workers,'' provides that
agencies should, consistent with applicable law, maximize the use of
goods, products, and materials produced in, and services offered in,
the U.S. 86 FR 7475 (Jan. 28, 2021). Based on the information contained
in the waiver request from Iowa DOT and the lack of responsive comments
following publication of a notice seeking comment on January 5, 2020,
regarding available domestic manufacturers for the subject parts, FHWA
concludes that issuing a waiver is not inconsistent with Executive
Order 14005.
Finding and Request for Comments
Based on all the information available to the Agency, FHWA
concludes that there are no Buy America-compliant relevant components
for the let-down structures for the pedestrian bridge associated with
the I-74 Mississippi River Bridge Project, specifically including: (i)
Traction elevator components; (ii) elevator guide rails; and (iii)
certain auxiliary components of the elevators or let-down structures.
This finding only includes components identified in the waiver request
and supporting documents included on FHWA's website.
Iowa DOT and its contractors and subcontractors involved in the
procurement of the relevant components are reminded of the need to
comply with the Cargo Preference Act in 46 CFR part 38, if applicable.
In accordance with the provisions of Section 117 of the SAFETEA-LU
Technical Corrections Act of 2008 (Pub. L. 110-244, 122 Stat. 1572),
FHWA is providing this notice as its finding that a waiver of Buy
America requirements is appropriate. The FHWA invites public comment on
this finding for an additional 5 days following the effective 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.
Stephanie Pollack,
Acting Administrator, Federal Highway Administration.
[FR Doc. 2021-21293 Filed 9-29-21; 8:45 am]
BILLING CODE 4910-22-P
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