Notice2023-17602
Waiver of Buy America Requirements for De Minimis Costs and Small Grants
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
August 16, 2023
Issuing agencies
Transportation Department
Abstract
The Department of Transportation (DOT) seeks to maximize the use of American-made products and materials in all federally funded projects as part of the Biden-Harris Administration's implementation of the Build America, Buy America Act (BABA), which was included in the historic Bipartisan Infrastructure Law (BIL). In this notice, DOT is taking action to finalize a limited waiver of Buy America requirements for de minimis costs and small grants. Based on public comments from stakeholders, this final waiver is narrower than what DOT had first proposed on November 4, 2022. The waiver will allow DOT and its assistance recipients to focus their domestic sourcing efforts on products that provide the greatest manufacturing opportunities for American workers and firms and reduce delays in the delivery of important transportation infrastructure projects that provide jobs and promote economic growth.
Full Text
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<title>Federal Register, Volume 88 Issue 157 (Wednesday, August 16, 2023)</title>
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[Federal Register Volume 88, Number 157 (Wednesday, August 16, 2023)]
[Notices]
[Pages 55817-55821]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-17602]
[[Page 55817]]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
[Docket No.: DOT-OST-2022-0124]
Waiver of Buy America Requirements for De Minimis Costs and Small
Grants
ACTION: Notice.
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SUMMARY: The Department of Transportation (DOT) seeks to maximize the
use of American-made products and materials in all federally funded
projects as part of the Biden-Harris Administration's implementation of
the Build America, Buy America Act (BABA), which was included in the
historic Bipartisan Infrastructure Law (BIL). In this notice, DOT is
taking action to finalize a limited waiver of Buy America requirements
for de minimis costs and small grants. Based on public comments from
stakeholders, this final waiver is narrower than what DOT had first
proposed on November 4, 2022. The waiver will allow DOT and its
assistance recipients to focus their domestic sourcing efforts on
products that provide the greatest manufacturing opportunities for
American workers and firms and reduce delays in the delivery of
important transportation infrastructure projects that provide jobs and
promote economic growth.
DATES: The waiver is applicable to awards that are obligated on or
after August 16, 2023.
FOR FURTHER INFORMATION CONTACT: For questions about this notice,
please contact Darren Timothy, DOT Office of the Assistant Secretary
for Transportation Policy, at <a href="/cdn-cgi/l/email-protection#1a7e7b68687f74346e7377756e72635a7e756e347d756c"><span class="__cf_email__" data-cfemail="1672776464737838627f7b79627e6f5672796238717960">[email protected]</span></a> or at 202-366-
4051. For legal questions, please contact Jennifer Kirby-McLemore, DOT
Office of the General Counsel, 405-446-6883, or via email at
<a href="/cdn-cgi/l/email-protection#7c16191212151a190e52111f101911130e193c181308521b130a"><span class="__cf_email__" data-cfemail="5e343b303037383b2c70333d323b33312c3b1e3a312a70393128">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
In January 2021, President Biden issued Executive Order (E.O.)
14005, titled Ensuring the Future is Made in All of America by All of
America's Workers. The E.O. states that the United States Government
``should, consistent with applicable law, use terms and conditions of
Federal financial assistance awards and Federal procurements to
maximize the use of goods, products, and materials produced in, and
services offered in, the United States.'' DOT is committed to ensuring
strong and effective Buy America implementation consistent with E.O.
14005.
On November 15, 2021, President Biden signed the BIL, enacted as
the Infrastructure Investment and Jobs Act, Public Law 117-58. The BIL
includes BABA, Public Law 117-58, div. G 70901-27, which greatly
strengthens Made in America standards by expanding the coverage and
application of Buy America preferences in Federal financial assistance
programs for infrastructure. BABA requires that ``the head of each
[covered] Federal agency shall ensure that none of the funds made
available for a Federal financial assistance program for infrastructure
. . . may be obligated for a project unless all of the iron, steel,
manufactured products, and construction materials used in the project
are produced in the United States.'' BIL 70914(a). However, Federal
agencies may waive the application of Buy America in certain
circumstances, including where the agency finds that applying the Buy
America requirement ``would be inconsistent with the public interest.''
BIL 70914(b)(1).
Transportation infrastructure projects use a variety of iron and
steel items, manufactured goods, and construction materials. Typical
iron and steel items subject to Buy America preferences include
structural and reinforcing steel incorporated into pavements, bridges,
and buildings (such as maintenance facilities); steel rail; and other
equipment. Manufactured products may include airfield lighting and
navigational aids; ties and ballast; traffic control systems; fare
collection and other electronic systems; and mooring bollards, fenders,
and gate operating systems. Construction materials include non-ferrous
metals, plastic and polymer-based products, glass, lumber, and drywall,
as well as materials \1\ that are explicitly exempted from being
considered construction materials under BABA. The statute also required
the Office of Management and Budget (OMB) to issue guidance to assist
in applying BABA's requirements. BIL 70915. On April 18, 2022, OMB
issued memorandum M-22-11, ``Initial Implementation Guidance on
Application of Buy America Preference in Federal Financial Assistance
Programs for Infrastructure'' (``Implementation Guidance''). Section
VII(b) of the Implementation Guidance, Waiver Principles and Criteria,
states that ``Federal agencies may wish to consider issuing a limited
number of general applicability public interest waivers in the interest
of efficiency and to ease burdens for recipients.'' Implementation
Guidance at p. 10. The Implementation Guidance goes on to provide
examples of certain types of public interest waivers an agency may
consider issuing that would support that goal, including infrastructure
project purchases below a de minimis threshold; purchases made under
small Federal grant awards; and miscellaneous minor components within
iron and steel products. As the Implementation Guidance notes, such
waivers could help ``ensure that recipients and Federal agencies make
efficient use of limited resources, especially if the cost of
processing the individualized waiver(s) would risk exceeding the value
of the items waived.'' Implementation Guidance at p. 11.
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\1\ See BIL section 701917(c). Exempted materials include cement
and cementitious materials, aggregates such as stone, sand, or
gravel, and aggregate binding agents or additives.
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BABA also provides that the preferences under section 70914 apply
only to the extent that a domestic content procurement preference as
described in Section 70914 does not already apply to iron, steel,
manufactured products, and construction materials. BIL 70917(a)-(b).
Federal financial assistance programs administered by DOT's Operating
Administrations (OAs) are subject to a variety of mode-specific
statutes that apply particular Buy America \2\ requirements to iron,
steel, and manufactured products, including 49 U.S.C. 50101 (FAA); 23
U.S.C. 313 (FHWA and NHTSA); 49 U.S.C. 22905(a) (FRA); 49 U.S.C.
5323(j) (FTA); and 46 U.S.C. 54101(d)(2) (MARAD). Recent annual
appropriations acts have also required DOT to apply the Buy American
Act (41 U.S.C. chapter 83) to funds appropriated under those acts,\3\
where a mode-specific statute is not in place. These statutes also
allow for waivers of the Buy America requirements to be issued when DOT
determines those waivers to be in the public interest.
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\2\ In this notice, references to ``Buy America'' include all
domestic preference laws that apply to DOT financial assistance
programs, including those called ``Buy American''.
\3\ For example, Section 409 of the Transportation, Housing and
Urban Development, and Related Agencies Appropriations Act, 2022
states that ``no funds appropriated pursuant to this Act may be
expended by an entity unless the entity agrees that in expending the
assistance the entity will comply with sections 2 through 4 of the
Act of March 3, 1933 (41 U.S.C. 8301-8305, popularly known as the
``Buy American Act'').''
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Certain DOT OAs do not currently apply Buy America preferences to
de minimis purchases or project costs under their existing statutory
requirements. For example, by statute, the Federal Transit
Administration (FTA) exempts purchases of $150,000 or less from the
FTA-specific Buy America
[[Page 55818]]
requirement. 49 U.S.C. 5323(j)(13); appendix A(c) to 49 CFR 661.7. By
statute, the Federal Railroad Administration (FRA) applies its FRA-
specific Buy America requirements only to projects for which costs
exceed $100,000. 49 U.S.C. 22905(a)(11). The Federal Highway
Administration's (FHWA) does not apply its Buy America requirements
where the cost of steel and iron materials is less than 0.1 percent of
the total contract cost or less than or equal to $2,500, whichever is
greater. 23 CFR 635.410(b)(4). However, other DOT OAs, including the
Federal Aviation Administration (FAA) and the Maritime Administration
(MARAD), do not have similar exceptions by statute or regulation.
In DOT's experience, the development and substantiation of
individual Buy America waivers requires recipients to determine the
availability or nonavailability of domestically sourced items. Such
efforts can help ensure that potential domestic suppliers are not
overlooked and, where waivers may be appropriate, help send signals to
industry about market opportunities. However, when the item cost is
relatively low, suppliers may be less incentivized to track and
document the country of origin of that item in a manner sufficient to
meet the requirements of the Buy America statutes applied to Federal
assistance. This can lead to increased administrative burdens even as
the potential impact of applying domestic preferences in those cases
may be lower. Focusing on higher value items can also allow Federal
agencies and their assistance recipients to focus their domestic
sourcing efforts on products that provide the greatest manufacturing
opportunities for American workers and firms and reduce delays in the
delivery of important transportation infrastructure projects that
provide jobs and promote economic growth.
On May 19, 2022, DOT issued a temporary waiver of the construction
materials requirement for 180 days: from May 14 until November 10,
2022. 87 FR 31931. In the waiver notice, DOT stated its expectation
that States, industry, and other participants establish procedures to
document compliance.
Issuance of the Proposed Waiver and Discussion of Comments Received
On November 4, 2022, DOT published a notice on its website
describing certain DOT actions. First, DOT announced that it would not
modify or extend the temporary waiver for construction materials. As a
result, DOT awards obligated on or after November 10, 2022, from
financial assistance programs for infrastructure projects, are required
to use construction materials produced in the United States on those
projects in accordance with BABA.
In accordance with Section 70914(b)(1) of BABA, the notice also
sought comment on whether DOT should use its authority to waive BABA's
domestic preferences for iron and steel, manufactured products, and
construction materials used in infrastructure projects funded under
DOT-administered financial assistance programs under a single financial
assistance award for which:
<bullet> The total value of the non-compliant products is no more
than the lesser of $1,000,000 or 5% of total allowable costs under the
Federal financial assistance award;
<bullet> The size of the Federal financial assistance award is
below $500,000; or
<bullet> The non-domestically produced miscellaneous minor
components comprise no more than 5 percent of the total material cost
of an otherwise domestically produced iron or steel product.
The basis for the proposal was that applying Buy America
preferences to iron, steel, manufactured products, and construction
materials below these thresholds would be inconsistent with the public
interest. The notice requested comment on whether such a waiver would
be warranted. DOT also specifically sought comment on the proposed
percentage and dollar thresholds for applying the waiver, including
whether those thresholds should be higher or lower than the levels in
the proposal.
To maximize notice to affected stakeholders, the Department also
announced the proposal on several email distribution lists related to
the operating administrations' existing Buy America requirements and
published the notice in the Federal Register. 87 FR 68576.
DOT received 92 comments in response to the publication from a wide
array of stakeholders, including manufacturers and suppliers, labor
organizations, State transportation agencies, public transit agencies,
airport operators, and construction firms, as well as associations
representing each of those groups.\4\ The majority of commenters
supported DOT's proposal to issue a waiver for de minimis costs, small
grants, and minor components. Comments opposing the waiver came from
certain manufacturers and labor organizations; their key concerns
relevant to the proposal are discussed in more detail below.
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\4\ See the U.S. Government electronic docket site at
<a href="http://www.regulations.gov">www.regulations.gov</a>, Docket: DOT-OST-2022-0124.
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Some commenters, including manufacturers and labor organizations,
raised concerns about applying the proposed waiver to existing (pre-
BABA) DOT Buy America requirements, most notably iron and steel. They
argued that this would weaken longstanding requirements and would be
inconsistent with Administration policy to maximize domestic content.
As was described in the notice and Implementation Guidance, the purpose
of establishing these thresholds is to allow DOT and its stakeholders
to focus their domestic sourcing efforts on high-value items that
provide the greatest manufacturing opportunities for American workers
and firms and reduce delays in the delivery of important transportation
infrastructure projects that provide jobs and promote economic growth.
That consideration applies comparably to products covered by DOT's
existing Buy America laws and materials newly covered by BABA's
requirements.
Those same commenters also raised specific concerns about applying
the waiver in situations that are already covered by existing agency
regulations. They specifically noted the existing de minimis waiver for
iron and steel established in FHWA's implementing regulation, 23 CFR
635.410(b)(4), and FTA's statutory small purchases waiver, 49 U.S.C.
5323(j)(13); Appendix A(c) to 49 CFR 661.7.
While DOT does not believe that the proposed waiver would create an
actual conflict with the FHWA regulatory waiver, DOT does recognize the
potential for confusion that could be created by having two separate de
minimis waivers for the same products under the same financial
assistance program. As a result, iron and steel products used on FHWA-
assisted projects are not included in the scope of the final waiver.
DOT notes that the Buy America law applicable to FRA-assisted
projects applies only to projects with costs that exceed $100,000. See
49 U.S.C. 22905(a)(11). That statutory exclusion for projects with
costs below that threshold is comparable to the small grants waiver
that DOT had proposed, but the statutory threshold is at a lower value
than what DOT proposed and is now finalizing. Therefore, like the FHWA
exception described above for the de minimis portion of this waiver,
DOT is including an FRA exception to the small grants portion of this
waiver. For projects that are subject to 49 U.S.C. 22905(a), the small
grants portion of the final waiver applies only to the
[[Page 55819]]
construction materials requirement under section 70914 of BABA; it does
not apply to steel, iron, or manufactured goods under 49 U.S.C.
22905(a).
FTA's statutory small purchase waiver, however, is different. That
waiver applies based on the cost of individual purchases that occur
under financial assistance awards, including labor and options.\5\
Depending on the size and type of contracts and subcontracts involved,
a single financial assistance award may support multiple purchases
under the threshold, or none. In contrast, the proposed waiver, and the
final waiver apply based on the size of the financial assistance award,
not purchases under that award. Accordingly, the Department is not
removing FTA-assisted projects from the scope of the final waiver.
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\5\ See FTA Guidance Letter on Buy America Small Purchase
Waivers at <a href="https://www.transit.dot.gov/regulations-and-guidance/buy-america/fta-guidance-letter-buy-america-small-purchase-waivers">https://www.transit.dot.gov/regulations-and-guidance/buy-america/fta-guidance-letter-buy-america-small-purchase-waivers</a>.
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DOT notes that the same considerations may also apply where the
Department has issued targeted waivers for certain products with
conditions that limit the scope of such waivers and are intended to
increase the use of domestic content. Where such conditions are in
place, DOT agrees that it would be inappropriate to apply the more
general waiver being considered here. Two recent examples of such
waivers include FHWA's Buy America waiver for electric vehicle chargers
(88 FR 10619) and FTA's partial Buy America waiver for vans and
minivans (87 FR 64534). Therefore, the final waiver does not apply to
products within the scope of those two waivers. If DOT proposes
additional product-specific waivers in the future, it will consider and
address any interaction with this waiver in those proposals.
Another concern raised by commenters opposed to the proposed waiver
was that it could be imposed indefinitely, without additional review.
They compared it to FHWA's longstanding general waiver for manufactured
products. As initially proposed and finalized here, and consistent with
the requirements of BABA section 70914(d), DOT will review this waiver
every five years after the date on which the waiver is issued. DOT also
notes that FHWA has recently initiated its review of the manufactured
products waiver, as required by BABA, including by providing an
opportunity for public comment, and will make a determination on
whether to continue or modify the waiver based on the comments
received. (88 FR 16517; 88 FR 24651).
Commenters opposed to the waiver also raised concerns about
applying the de minimis cost percentage threshold to the overall cost
of the project, noting that doing so could potentially allow entire
classes of materials used on DOT-assisted projects to be subject to the
waiver. To address this concern, in the final waiver, DOT is narrowing
its scope by applying the 5% threshold only to the total applicable
project costs, where applicable costs are defined as the cost of
materials (including the cost of any manufactured products) used in the
project that are subject to a domestic preference requirement
(including materials that are within the scope of an existing waiver).
DOT acknowledges that establishing a specific project is compliant with
the terms of the waiver will, therefore, require tracking of the
materials cost in a project separate from other project costs. Though
this may create a new administrative requirement for recipients or
contractors who do not currently track those costs separately: (1) DOT
believes that, on balance, the benefits of the waiver significantly
outweigh that administrative burden and (2) recipients that conclude
the administrative burden of the waiver outweighs its benefit may forgo
use of the waiver and comply with the relevant Buy America
requirements.
A commenter questioned whether ``total allowable costs,'' as used
in the proposal, referred to the entire project's anticipated costs or
just the Federal share of the entire project's anticipated costs.
Because the final waiver applies based on cost of materials in the
project, it no longer uses the term ``total allowable costs.'' The
final waiver applies to the actual cost of the materials, not the
anticipated cost of those materials.
Multiple commenters requested clarification on whether the proposed
de minimis cost would apply to each non-compliant product (by line-
item) or to the total cost of all non-compliant products, with some
suggesting that the criteria be applied on an individual line-item
basis. The final waiver applies based on the total cost of all non-
compliant products. Changing that to apply the threshold to individual
purchases could result in the waiver allowing a much higher amount of
non-domestic content on a project than is intended by this narrowly
tailored waiver. As a result, no changes have been made to the related
language in the proposal.
One commenter also noted that, in similar de minimis waivers
applied to BABA or the agency's own domestic preference requirements,
other agencies have included a separate limitation of 1% of total costs
per item and suggested that DOT do likewise. However, we note that
other agencies have issued waivers with the same overall 5% de minimis
threshold but without including the separate 1% per item cap. Because
the per-item cap was proposed to prevent the waiver from being too
broad, DOT notes that the change in the cost basis for the waiver from
project costs to materials costs will also serve to limit the waiver's
scope. Accordingly, DOT is not including an additional per-item cap in
the final waiver but will continue to monitor the application of the
waiver and may make adjustments in the future if warranted.
Commenters also requested clarification on applying the $500,000
small grants threshold if there are multiple Federal financial
assistance awards for a project. In the final waiver, DOT is clarifying
that the small grants threshold applies to the total amount of Federal
financial assistance provided for a project, not just the total amount
of a single award. This clarification narrows the scope of the waiver,
relative to applying the small grants threshold only to the total
amount of assistance under a single award and will help deter
recipients of DOT financial assistance from artificially limiting the
size of individual awards to fit under the threshold. If a recipient
receives multiple awards for a single project, the recipient is
responsible for aggregating the value of those awards and tracking
whether the waiver would apply. Likewise, if a project is completed in
phases using multiple awards, the value of those awards must be
aggregated to determine whether the waiver would apply.
A significant number of commenters also requested clarification on
the nature of the term ``Federal financial assistance award.'' Several
commenters specifically sought clarification on whether the waiver
would apply to subawards as well as initial awards made by a DOT
agency. Many such comments came from stakeholders and funding
recipients under FHWA's Recreational Trails Program (RTP). Under that
program, funds are apportioned to States, who then solicit and select
projects to receive RTP funds as subawards. Under several FTA funding
programs, including the formula grants program for the enhanced
mobility of seniors and individuals with disabilities (49 U.S.C. 5310)
and formula grants program for rural areas (49 U.S.C. 5311), awards are
made to statutorily defined entities such as States, which then make
subawards to statutorily defined subrecipients for eligible projects.
Subawards are also
[[Page 55820]]
common under FAA's Airport Improvement Program. As the small grants
waiver is intended to be applied on a project basis, DOT is clarifying
in the final waiver that it may be applied to both financial assistance
awards and subawards, as those terms are defined in 2 CFR 200.1 and
used in 2 CFR part 200, where the subaward is made by a pass-through
entity for a specific project. It is not applicable to a subaward from
an award that exceeds the $500,000 threshold if the scope of the
subaward is not a separately identifiable, independent project.
DOT sought comment on the proposed dollar threshold for applying
the waiver to small grants and provided information on the number and
total dollar value of grants issued by DOT agencies below threshold
levels of $500,000 and $250,000. Multiple commenters urged DOT to
significantly increase the dollar threshold for all projects to as high
as $5,000,000. Other commenters suggested raising the threshold to
alternative values ranging between $750,000 and $2,000,000, while still
others were satisfied with the proposed value of $500,000. Some
commenters suggested the threshold value be raised but did not provide
a suggested value. One commenter suggested temporarily setting both the
dollar and percentage thresholds at higher levels, which would decrease
over the next two years. Some commenters opposed the waiver altogether,
with one commenter noting that DOT's proposed threshold was higher than
the $250,000 threshold referenced in the Implementation Guidance.
Therefore, on balance, DOT believes it is appropriate to finalize the
waiver using the $500,000 threshold for small grants that was presented
in the proposed waiver. DOT does not find that expanding the waiver to
permit the use of more foreign material would be in the public
interest.
Commenters also asked that the waiver be applied retroactively to
any projects that are currently in the pipeline. DOT believes that
concerns about projects currently under development have been
adequately addressed by the waiver issued by the Department on January
30, 2023, for certain contracts and solicitations. Thus, this waiver
will apply only to awards obligated or subawards made on or after the
effective date.
The proposed waiver also would have applied where ``the non-
domestically produced miscellaneous minor components comprise no more
than 5 percent of the total material cost of an otherwise domestically
produced iron or steel product.'' Many commenters indicated that the
phrase ``miscellaneous small components'' was unclear and sought
clarification of its meaning. States also expressed conflicting views
on the minor components portion of the proposal. One commenter noted
that iron and steel products used on DOT-assisted projects are unlikely
to have components, which would make such a waiver less useful; another
raised concerns that the cost criterion is not reasonably verifiable by
project sponsors. Another commented that the minor components element
could address the use of commercially available off-the-shelf (COTS)
products that comprise a small amount of material incidental to a
project; however, this application of the waiver would appear to be
covered by the de minimis threshold for overall materials costs as
well. Based on these comments, there does not appear to be strong
support for this portion of the proposed waiver at this time. As a
result, DOT has narrowed the final waiver to exclude a provision
related specifically to minor components. DOT will continue to monitor
this issue as it implements the domestic preference requirements of
BABA and other Buy America statutes and may consider revisiting the
application of those requirements to minor components of iron and steel
products at a later time if it deems that doing so would be in the
public interest.
Finding on the Waiver
Based on all the information available to the Agency, DOT finds
that it is in the public interest to issue a waiver of BABA's domestic
preferences for iron and steel, manufactured products, and construction
materials used in projects funded under DOT-administered financial
assistance programs for iron, steel, manufactured products, and
construction materials under a single financial assistance award for
which:
<bullet> The total value of the non-compliant products is no more
than the lesser of $1,000,000 or 5% of total applicable costs for the
project; or
<bullet> The total amount of Federal financial assistance applied
to the project, through awards or subawards, is below $500,000.
The waiver is applicable only to awards that are obligated or
subawards that are made on or after the effective date of the waiver.
The waiver is applicable to subawards only if the subawards are made by
a pass-through entity for a specific project.
In applying the waiver, the ``total value of the non-compliant
products'' does not include the value of those products subject to a
separate Buy America waiver. ``Total applicable project costs'' are
defined as the cost of materials (including the cost of any
manufactured products) used in the project that are subject to a
domestic preference requirement, including materials that are within
the scope of an existing waiver.
Because many DOT-administered financial assistance programs are
also subject to program-specific domestic preference requirements, the
waiver also applies to those requirements. Specifically, the waiver is
also an exercise of DOT's authority to issue public interest waivers
under 23 U.S.C. 313(b)(1), 49 U.S.C. 5323(j), 46 U.S.C.
54101(d)(2)(B)(i)(I), 49 U.S.C. 22905(a)(2), 49 U.S.C. 50101(b)(1), and
41 U.S.C. 8301(a)(2), as applied to DOT financial assistance. However,
the de minimis cost portion of the waiver (i.e., the first bullet in
the finding above) does not apply to iron and steel subject to the
requirements of 23 U.S.C. 313 on financial assistance administered by
FHWA.<SUP>6 7</SUP> The small grants portion of the waiver (i.e., the
second bullet in the finding above) does not apply to iron, steel, and
manufactured goods subject to the requirements of 49 U.S.C. 22905(a).
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\6\ The existing de minimis standard for iron and steel under 23
CFR 635.410(b)(4) will continue to apply to those projects.
\7\ While 23 U.S.C. 313 also applies to financial assistance
administered by NHTSA, FHWA's existing de minimis waiver for iron
and steel applies only to FHWA's assistance programs. Thus, this
waiver fully applies to NHTSA-administered projects.
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The waiver does not apply to products that are the subject of two
separate product-specific Buy America waivers from the Department:
1. For awards administered by FHWA that are subject to 23 U.S.C.
313, the waiver does not apply to electric vehicle chargers, as defined
in the notice at 88 FR 10619.
2. For awards that are subject to 49 U.S.C. 5323(j), the waiver
does not apply to mass-produced, unmodified non-ADA accessible vans and
minivans with seating capacity for at least six adults not including
the driver, as those terms are used in the notice at 87 FR 64534.
DOT believes that waiving the domestic preference requirements for
lower-cost items purchased for infrastructure projects under BABA and
the DOT-administered Buy America statutes referenced above will support
the goals of E.O. 14005 to maximize domestic content in Federal
financial assistance awards. Doing so will allow the Department and its
assistance recipients to make efficient use of its limited resources to
focus their efforts
[[Page 55821]]
on higher-value products with more significant opportunities to develop
a domestic supply base and create well-paid jobs for American workers.
Section 70914(d) of BABA requires that any general applicability
waivers issued under section 70914(b) must ``be reviewed every 5 years
after the date on which the waiver is issued,'' and prescribes a
process for that review that includes an opportunity for public notice
and comment and publication in the Federal Register of a determination
on whether to continue or discontinue the waiver at that time.
Accordingly, this general applicability waiver will be subject to such
a review within five years of its issue date. However, DOT reserves the
right to modify or shorten the duration of this waiver if it obtains
information before the end of the five-year period indicating the
waiver is no longer in the public interest.
The Implementation Guidance also provides that, before granting a
waiver in the public interest, to the extent permitted by law, agencies
shall assess whether a significant portion of any cost advantage of a
foreign-sourced product is ``the result of the use of dumped steel,
iron, or manufactured products or the use of injuriously subsidized
steel, iron, or manufactured products.'' Implementation Guidance at p.
12. E.O. 14005 at Section 5 includes a similar requirement for ``steel,
iron, or manufactured goods.'' However, because the public interest
waiver that DOT is finalizing in this notice is not based on
consideration of the cost advantage of any foreign-sourced steel, iron,
or manufactured product content, there is not a specific cost advantage
for DOT to consider.
Section 117 of the SAFETEA-LU Technical Corrections Act of 2008
(Pub. L. 110-244, 122 Stat. 1572) also requires an additional five-day
comment period after FHWA publishes a waiver finding notice. Comments
received during that period will be reviewed, but the finding will
continue to remain valid. Those comments may influence DOT/FHWA's
decision to terminate or modify a finding.
Issued in Washington, DC on: August 10, 2023.
Carlos Monje Jr.,
Under Secretary of Transportation for Policy.
[FR Doc. 2023-17602 Filed 8-15-23; 8:45 am]
BILLING CODE 4910-9X-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on August 16, 2023.
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