Notice2022-02449
Buy America Waiver Notification
Primary source
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Published
February 7, 2022
Effective
February 8, 2022
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 Golden Gate Bridge, Highway & Transportation District (District) for procurement of foreign iron and steel components for the maintenance traveler system, which is needed to allow continued inspections and routine maintenance operations after the Golden Gate Bridge Physical Suicide Deterrent System Project (Project) is constructed. The non-domestic parts include: (i) Electric motors; (ii) speed reducers; (iii) wheel chocks; (iv) a chain stopper; (v) rail clamps with hydraulic power units; (vi) pneumatic brakes; (vii) air compressors; (viii) gas cylinder stands; (ix) bearings (of various types specified in the request); (x) electric cabinet switches and handles; (xi) electrical cabinet shafts; (xii) grounding shoes; and (xiii) scissor lifts.
Full Text
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<title>Federal Register, Volume 87 Issue 25 (Monday, February 7, 2022)</title>
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[Federal Register Volume 87, Number 25 (Monday, February 7, 2022)]
[Notices]
[Pages 6936-6938]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02449]
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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 Golden Gate
Bridge, Highway & Transportation District (District) for procurement of
foreign iron and steel components for the maintenance traveler system,
which is needed to allow continued inspections and routine maintenance
operations after the Golden Gate Bridge Physical Suicide Deterrent
System Project (Project) is constructed. The non-domestic parts
include: (i) Electric motors; (ii) speed reducers; (iii) wheel chocks;
(iv) a chain stopper; (v) rail clamps with hydraulic power units; (vi)
pneumatic brakes; (vii) air compressors; (viii) gas cylinder stands;
(ix) bearings (of various types specified in the request); (x) electric
cabinet switches and handles; (xi) electrical cabinet shafts; (xii)
grounding shoes; and (xiii) scissor lifts.
DATES: The effective date of the waiver is February 8, 2022.
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#1557677c747b3b5d7a72727055717a613b727a63"><span class="__cf_email__" data-cfemail="df9dadb6beb1f197b0b8b8ba9fbbb0abf1b8b0a9">[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#a1f1c0d5d3c8c2ca8fe28ff2ccc8d5c9e1c5ced58fc6ced7"><span class="__cf_email__" data-cfemail="74241500061d171f5a375a27191d001c34101b005a131b02">[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 the District a
Buy America waiver for procurement of foreign iron and steel components
for the maintenance traveler system, which is needed to allow continued
inspections and routine maintenance operations after the Project is
constructed. The non-domestic parts include: (i) Electric motors; (ii)
speed reducers; (iii) wheel chocks; (iv) a chain stopper; (v) rail
clamps with hydraulic power units; (vi) pneumatic brakes; (vii) air
compressors; (viii) gas cylinder stands; (ix) bearings (of various
types specified in the request); (x) electric cabinet switches and
handles; (xi) electrical cabinet shafts; (xii) grounding shoes; and
(xiii) scissor lifts.
Background on the Project: On average, 30 people die from suicide
at the Golden Gate Bridge each year. Hundreds more are stopped by the
District, the California Highway Patrol, or other intervention. The
District determined that a physical barrier was needed to stop suicides
from the bridge. The Project, Federal Aid Project No. BHLS-6003(051),
involves the construction of a horizontal stainless-steel net supported
by steel net supports for the full length of the bridge, except for a
tall vertical railing installed in one location. The horizontal steel
net system uses all American steel. The Project also includes the
replacement of the bridge maintenance travelers with new travelers
because the installation of the net will block the movement of the
existing travelers. In this context, a ``traveler'' means a moveable
inspection and maintenance platform, which travels on steel rails and
trolley beams and is designed to provide access to the bridge. A new
replacement traveler access system is necessary to allow continued
inspections and routine maintenance operations after the Suicide
Deterrent System is constructed. Some of the traveler equipment is not
available with the required Buy America certification because it is not
[[Page 6937]]
manufactured in America or manufactured in America with some non-
domestic parts.
The contract for the Project also encompasses the Golden Gate
Bridge Wind Retrofit Project, Federal Aid Project No. BHLS-6003(052).
The current construction contract amount for both projects is
approximately $142.1 million (with $132.6 million for the Suicide
Deterrent System Project and $9.5 million for the Wind Retrofit
Project). The estimated value of the components under the requested
waiver is approximately $2.6 million (or less than two percent of the
total contract amount). The construction contract specifies that the
Project is partially funded with Federal funds and that the FHWA Buy
America provisions apply. For the Suicide Deterrent System Project,
approximately 65 percent of the total Project cost is Federal, 4
percent is from the State, and 31 percent is local. Under 23 U.S.C.
313(g), FHWA's Buy America requirement applies to the entire scope of
the project, as defined in the NEPA document, when Federal funds are
used in any part of the project regardless of whether Federal funds are
used in the actual component that is subject to the waiver.
The traveler system is a ``contractor-designed'' element of this
low-bid construction contract. As such, the fact that some of the
requisite traveler equipment is not available with Buy America
certifications was not identified until after the contract was awarded
and the contractor completed the traveler design. Specifically, the new
travelers will be propelled by electric drive systems that include some
manufactured mechanical and electrical control components that are not
available with the Buy America certification. The travelers must also
be equipped with electric scissor lifts that are similarly not
available with the Buy America certification.
Background on Waiver Request: The District originally submitted a
Buy America waiver request letter to FHWA on June 24, 2020. Prior to
requesting a waiver, the District unsuccessfully attempted to identify
domestic manufacturers for these products. The District reported to
FHWA in the waiver request letter that the District, its contractor,
and consultants contacted numerous manufacturers and distributors to
identify products that complied with Buy America but were not
successful in locating any domestic manufacturers or fabricators of the
relevant products. Attachment 1 to the request letter provided a record
of the District's efforts. The waiver request included the following
non-domestic parts: (i) Electric motors; (ii) speed reducers; (iii)
wheel chocks; (iv) a chain stopper; (v) rail clamps with hydraulic
power units; (vi) pneumatic brakes; (vii) air compressors; (viii) gas
cylinder stands; (ix) bearings (of various types specified in the
request); (x) electric cabinet switches and handles; (xi) electrical
cabinet shafts; (xii) grounding shoes; and (xiii) scissor lifts.
Attachment 1 to the request letter provided further information on
these parts.
In accordance with the Consolidated Appropriations Act, 2021 (Pub.
L. 116-260), 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=157">https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=157</a>, on September 27, 2021.
The FHWA received 14 comments in response to the publication. Eight
commenters opposed the waiver, two supported it, and four of the
comments documented the District's efforts to follow-up with one of the
commenters opposing the waiver. Seven of the comments opposing the
waiver did not offer any specific information on the availability of
compliant products, nor did they suggest specific, additional actions
that the District could take to maximize its use of goods, products,
and materials produced in the United States. One commenter opposing the
waiver indicated that he believed the parts were available from
domestic suppliers but also did not name a specific manufacturer. This
comment was submitted on September 28, 2021, and invited the District
to contact the commenter for additional information on his statement.
On October 4, 2021, the District responded to this commenter on the
website requesting the names of United States manufacturers able to
provide the relevant parts. On October 13, 2021, the District emailed
this commenter at the email address he used to submit the comment
asking the same. On October 25, 2021, the District posted a new comment
to the website explaining that it had received no reply, either by
email or phone, to its questions for this commenter. Thus, the District
did not receive any new information indicating that the subject parts
could be produced by domestic manufacturers from any of the commenters
opposing the waiver.
Although the District did not identify compliant components for the
maintenance travelers, it provided information to FHWA supporting its
waiver request, including information:
<bullet> Supporting the necessity of these specific maintenance
travelers for allowing continued access to the bridge for performing
inspections and maintenance operations after the suicide prevention
nets are installed;
<bullet> Documenting efforts to locate compliant manufactured
products;
<bullet> Demonstrating that alternative designs were infeasible;
and
<bullet> Describing the effects of denying the request.
Although ultimately unsuccessful, the District made substantial
efforts to find suitable Buy America compliant components for the
maintenance travelers.
Timing and Need for a Waiver. The District maintains that approval
of a Buy America waiver for the relevant components of the maintenance
travelers is now critical to maintain the schedule of ongoing
construction on the Project. The District explained in early 2021 that
it was already at a juncture where delays in the approval of the Buy
America waiver may delay completion of construction with commensurate
additional payments to the contractor.
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 United States. 86 FR 7475 (Jan. 28, 2021). Based on the information
contained in the waiver request from the District and the lack of
responsive comments following publication of a notice seeking comment
on September 28, 2021, regarding available domestic manufacturers for
the subject parts, FHWA concludes that issuing a waiver is consistent
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 maintenance travelers for the Project, specifically including:
(i) Electric motors; (ii) speed reducers; (iii) wheel chocks; (iv) a
chain stopper; (v) rail clamps with hydraulic power units; (vi)
pneumatic brakes; (vii) air compressors; (viii) gas cylinder stands;
(ix) bearings (of various types specified in the request); (x) electric
cabinet switches and handles; (xi) electrical cabinet shafts; (xii)
grounding shoes; and (xiii) scissor lifts. This finding only includes
components identified in the waiver request and supporting documents
included on FHWA's website.
The District and its contractors and subcontractors involved in the
procurement of the relevant components
[[Page 6938]]
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. FHWA invites public comment on
this finding for an additional five (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. 110-244; Pub. L. 116-260; 23 CFR
635.410.
Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.
[FR Doc. 2022-02449 Filed 2-4-22; 8:45 am]
BILLING CODE 4910-22-P
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