Notice2024-24334
Buy America Waiver Notification
Primary source
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Published
October 22, 2024
Effective
October 23, 2024
Issuing agencies
Transportation DepartmentFederal Highway Administration
Abstract
This notice provides information regarding FHWA's finding that it is appropriate to grant a non-availability Buy America waiver to the Utah Department of Transportation (UDOT) for procurement and installation of 16 suspended explosive charge remote avalanche control systems (RACS), which contain non-domestic iron and steel components, along Mount Superior overlooking SR-210 in Little Cottonwood Canyon, Utah. The waiver relates specifically to iron and steel components that are part of the tower, deployment box, and charges of the RACS.
Full Text
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<title>Federal Register, Volume 89 Issue 204 (Tuesday, October 22, 2024)</title>
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[Federal Register Volume 89, Number 204 (Tuesday, October 22, 2024)]
[Notices]
[Pages 84435-84437]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-24334]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Buy America Waiver Notification
AGENCY: Federal Highway Administration (FHWA), U.S. 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 non-availability Buy America waiver to the
Utah Department of Transportation (UDOT) for procurement and
installation of 16 suspended explosive charge remote avalanche control
systems (RACS), which contain non-domestic iron and steel components,
along Mount Superior overlooking SR-210 in Little Cottonwood Canyon,
Utah. The waiver relates specifically to iron and steel components that
are part of the tower, deployment box, and charges of the RACS.
DATES: The effective date of the waiver October 23, 2024.
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#e0a29289818ecea88f878785a0848f94ce878f96"><span class="__cf_email__" data-cfemail="d290a0bbb3bcfc9abdb5b5b792b6bda6fcb5bda4">[email protected]</span></a>. For legal questions,
please contact Mr. David Serody, FHWA Office of the Chief Counsel,
(202) 366-1345, or via email at <a href="/cdn-cgi/l/email-protection#d89cb9aeb1bcf68bbdaab7bca198bcb7acf6bfb7ae"><span class="__cf_email__" data-cfemail="feba9f88979ad0ad9b8c919a87be9a918ad0999188">[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 U.S.
Government Publishing Office's database at: <a href="http://www.GovInfo.gov">www.GovInfo.gov</a>.
Background
The FHWA's Buy America requirements for steel and iron are set
forth at 23 U.S.C. 313 and 23 CFR 635.410 and require that all steel
and iron that are permanently incorporated into a Federal-aid project
must be produced in the United States unless a waiver is granted,
including predominantly steel and iron components of a manufactured
[[Page 84436]]
product.\1\ Under these requirements, all manufacturing processes,
including the application of a coating, must occur in the United
States.\2\
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\1\ Under 23 U.S.C. 313, FHWA has a Buy America requirement for
manufactured products; however, FHWA has a standing waiver under 23
U.S.C. 313(b), known as the Manufactured Products General Waiver,
which covers manufactured products that are not predominantly steel
and iron. See 48 FR 53099 (Nov. 25, 1983).
\2\ While the Build America, Buy America Act (BABA), included in
the Infrastructure Investment and Jobs Act (also known as the
``Bipartisan Infrastructure Law'' (BIL)) (Pub. L. 117-58), sets out
Buy America preferences for steel, iron, manufactured products, and
construction materials, these preferences only apply to the extent
that a domestic content procurement preference, as described in
section 70914 of BABA, does not already apply to iron, steel,
manufactured products, and construction materials. BIL section
70917(a)-(b). As FHWA has existing domestic content preferences for
steel, iron, and manufactured products at 23 U.S.C. 313, the
requirements under 23 U.S.C. 313 apply to steel, iron, and
manufactured products instead of the requirements under BABA. As
FHWA's existing Buy America requirement does not specifically cover
construction materials, the Buy America preference under section
70914 of BABA applies for construction materials.
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Under 23 U.S.C. 313(b)(2) and 23 CFR 635.410(c)(1)(ii), FHWA may
waive the application of its Buy America requirement for steel and iron
when products are not produced in the United States in sufficient and
reasonably available quantities of a satisfactory quality. This notice
provides information regarding FHWA's finding that it is appropriate to
grant UDOT a non-availability Buy America waiver for procurement of 16
suspended explosive charge RACS, which include non-domestic iron and
steel components, for installation along Mount Superior overlooking SR-
210 in Little Cottonwood Canyon, Utah. For each of the 16 RACS, this
waiver will cover only: (i) the tower; (ii) the deployment box; and
(iii) the charges (collectively ``waiver items''). This waiver does not
apply to the reinforced foundation of the RACS, which consists of
anchor kits and a base plate; such foundation must be domestically
sourced and compliant with FHWA's Buy America requirements.
Background on the Project: In 2020, the U.S. Army asked all members
of the Avalanche Artillery Users of North America Committee to submit
an exit plan for their use of military artillery. Currently, UDOT
leases a P-Ridge howitzer from the U.S. Army to fire live artillery
ammunition for avalanche control in Little Cottonwood Canyon. This is
the only location in North America where live artillery is fired over
inhabited buildings. The UDOT has committed to ending the use of the
howitzer by 2025 and replacing it with RACS, which use remotely
detonated explosives to mitigate avalanches and save lives. This
project is to install 16 RACS using suspended explosive charges along
SR-210 in Little Cottonwood Canyon to minimize safety concerns from the
overhead fire of live artillery over inhabited structures.
Background on Waiver Request: The UDOT is part of the
Transportation Avalanche Research Pool, which has identified three main
types of RACS used in the United States: gas-delivered explosives,
propelled explosive charges, and suspended explosive charges. The UDOT
believes that the most appropriate products for this project based on
the unique terrain in the deployment area are RACS that utilize
suspended explosive charges. Prior to submitting a waiver request, UDOT
identified only one domestic supplier of any type of RACS; however,
that company uses gas-delivered explosives, and such a system is not
viable for this project due to the extreme terrain, excessive rockfall,
and extensive distance of the required gas line that would be needed to
operate the system. The UDOT also used the National Institute of
Standards and Technology's Manufacturing Extension Partnership Supplier
Scouting service to seek out any domestic manufacturers of RACS, but no
domestic alternatives were identified.
The UDOT thus requested a waiver for the tower, deployment box, and
charges that are part of the RACS for 16 systems that will use
suspended explosive charges.
In accordance with section 122 of Division F of the Consolidated
Appropriations Act, 2024 (Pub. L. 118-42), section 117 of the SAFETEA-
LU Technical Corrections Act of 2008 (Pub. L. 110-244), and 23 U.S.C.
313(g), FHWA posted a notice of the waiver request on its website on
April 10, 2024, soliciting public comment on the intent to issue a
waiver of the waiver items for a 15-day period.\3\
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\3\ <a href="https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=175">https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=175</a>.
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Waiver Justification Summary
Comments to the Notice of Waiver Request: The FHWA received five
comments in response to the notice of the waiver request. One commenter
stated that FHWA's Buy America requirements are outdated and indicated
that FHWA should grant the waiver. Another stated that FHWA should
grant the waiver and argued that FHWA should not apply its Buy America
requirements to predominantly steel and iron components.
Two other commenters provided information not relevant to the
waiver request. One questioned the environmental impacts of RACS, which
is not an issue within the scope of this waiver request.
Another commenter stated that the Office of Management and Budget
(OMB) policy eliminated the need for the waiver request because OMB
requirements apply to manufactured products, not just iron and steel.
The FHWA's Buy America requirements with respect to manufactured
products, however, differ from requirements applicable to other Federal
Agencies under BABA, which was included as part of the BIL (Pub. L.
117-58). The FHWA has waived its statutory Buy America requirements as
to all manufactured products that are not predominantly steel and iron;
however, FHWA applies its Buy America requirements to predominantly
iron and steel components of manufactured products, and such components
must comply with FHWA's requirements that all iron and steel must be
domestically manufactured. Although BABA requires that manufactured
products be manufactured in the United States and the cost of the
manufactured product's components that are mined, produced, or
manufactured in the United States must be greater than 55 percent of
the total cost of all components of the manufactured product, BABA does
not specifically mandate that iron and steel components in particular
must be domestically manufactured.\4\ See BIL section 70912(6)(B).
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\4\ To meet the requirement that 55 percent of components, by
cost, be mined, produced, or manufactured in the United States for a
manufactured product containing predominantly iron or steel
components, a manufacturer may choose to domestically produce those
components. This is different from FHWA's Buy America requirements,
which mandate that all predominantly steel or iron components be
domestically produced, regardless of the percent, by cost, of which
they make up the manufactured product.
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In other words, FHWA applies its own Buy America requirements to
steel, iron, and manufactured products used on FHWA funded projects,
not the standards for steel, iron, and manufactured products under
BABA. See BIL section 70917(a)-(b). Accordingly, manufactured products
used on FHWA funded projects are only compliant with Buy America if all
of their predominantly steel and iron components are domestically
manufactured. Manufactured products that meet BABA's standards, being
manufactured in the United States and having 55 percent of the
components, by cost, be mined, produced, or
[[Page 84437]]
manufactured in the United States, are not inherently compliant with
FHWA's Buy America and may not necessarily be permanently incorporated
into FHWA-funded projects.
Finally, the fifth commenter, representing the domestic supplier
identified by UDOT as using gas-delivered explosives noted above,
stated that the company was not consulted on the viability of its
product to work in the project terrain and contested the statement from
UDOT that its products are not a viable alternative for the project.
When determining whether steel and iron materials or products are not
produced in the United States in sufficient and reasonably available
quantities which are of a satisfactory quality pursuant to 23 U.S.C.
313(b)(2) and 23 CFR 635.410(c)(1)(ii), FHWA considers whether the
recipient has used appropriate due diligence to identify domestic
products or domestically available alternative products that meet the
recipient's specifications. A comparable product that performs a
similar function is not necessarily a domestic alternative; the product
must also meet the recipient's specific requirements that are deemed
necessary in order to achieve the performance objectives of the
project. The FHWA's statutory requirements do not require recipients to
change product specifications in order to utilize domestic products
that do not meet the recipient's original specifications. Accordingly,
as FHWA views this fifth commenter as arguing UDOT should modify their
original specifications to accommodate their domestic product, FHWA
does not believe that this commenter has demonstrated that they have a
suitable domestic alternative.
In sum, no commenter provided information on potential domestic
manufacturers of suspended explosive charge RACS. Thus, UDOT did not
receive any new information indicating that the waiver items could be
produced by domestic manufacturers from any of the commenters.
The FHWA believes that UDOT has made substantial efforts to find
suitable Buy America-compliant waiver items that will safely and
effectively serve the purpose of this project but that such products
are unavailable.
Timing and Need for a Waiver: The waiver items are essential to
achieving the goal of replacing the current use of live artillery with
a safer remote-activated system that can provide highway avalanche
mitigation.
While UDOT did not request a waiver for the reinforced foundation
of the RACS, as such foundation can be domestically manufactured, the
waiver items are engineered to work together as a single system, and
exchanging parts of the system would reduce the reliability and safety
of the system. Accordingly, the waiver items at issue must be purchased
and installed as a single system, and UDOT has not located any domestic
manufacturers for the waiver items meeting the project's
specifications, nor has any domestic manufacturer identified the
ability to produce Buy America-compliant waiver items through the
public comment process.
Executive Order 14005: Executive Order (E.O.) 14005, entitled
``Ensuring the Future is Made in All of America by All of America's
Workers,'' provides that Federal 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 UDOT and the lack of responsive comments to the notice of
waiver request, FHWA concludes that issuing a waiver is not
inconsistent with E.O. 14005.
Finding and Request for Comments
Based on all the information available to the Agency, FHWA
concludes that there are no Buy America-compliant waiver items meeting
the project's specifications and is waiving its Buy America
requirements for steel and iron set forth at 23 U.S.C. 313 and 23 CFR
635.410 for recipient purchases of 16 RACS using suspended explosive
charges for avalanche highway mitigation in Little Cottonwood Canyon.
For each RACS, this waiver will cover only: (i) the tower; (ii) the
deployment box; and (iii) the charges (collectively ``waiver items'').
This waiver does not apply to other components of the RACS, such as
reinforced foundations, which must be compliant with FHWA's Buy America
requirements. In addition, this waiver does not cover additional
charges purchased for the RACS.
The waiver applies to the waiver items used in the project that are
subject to FHWA's Buy America requirements as a result of obligations
of Federal financial assistance made by FHWA for the project.
The UDOT 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, FHWA is providing this notice as its
finding that a waiver of its Buy America requirements for steel and
iron is appropriate. The FHWA invites public comment on this finding
for an additional five 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.
Kristin R. White,
Acting Administrator, Federal Highway Administration.
[FR Doc. 2024-24334 Filed 10-21-24; 8:45 am]
BILLING CODE 4910-22-P
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