2016-05371. Notice of Buy America Waiver

AGENCY:

National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).

ACTION:

Notice of Buy America waiver.

SUMMARY:

This notice provides NHTSA's finding with respect to a request to waive the requirements of Buy America from the Maine Bureau of Highway Safety (MBHS). NHTSA finds that a non-availability waiver of the Buy America requirement is appropriate for the purchase of a Leica total station using Federal highway traffic safety grant funds because there are no suitable products produced in the United States.

DATES:

The effective date of this waiver is March 25, 2016. Written comments regarding this notice may be submitted to NHTSA and must be received on or before: March 25, 2016.

ADDRESSES:

Written comments may be submitted using any one of the following methods:

• Mail: Docket Management Facility, M-30, U.S. Department of Transportation, West Building, Ground Floor, Rm. W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.
• Fax: Written comments may be faxed to [phone].
• Internet: To submit comments electronically, go to the Federal regulations Web site at http://www.regulations.gov. Follow the online instructions for submitting comments.
• Hand Delivery: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. Eastern Time, Monday through Friday, except Federal holidays.

Instructions: All comments submitted in relation to this waiver must include the agency name and docket number. Please note that all comments received will be posted without change to http://www.regulations.gov,, including any personal information provided. You may also call the Docket at 202-366-9324.

FOR FURTHER INFORMATION CONTACT:

For program issues, contact Barbara Sauers, Office of Regional Operations and Program Delivery, NHTSA (phone: [phone]). For legal issues, contact Andrew DiMarsico, Office of Chief Counsel, NHTSA (phone: [phone]). You may send mail to these officials at the National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

This notice provides NHTSA's finding that a waiver of the Buy America requirement, 23 U.S.C. 313, is appropriate for MBHS to purchase a Leica Flexline TS02 Plus R500 Reflectorless Total Station for $12,925 using grant funds authorized under 23 U.S.C. 402. Section 402 funds are available for use by state highway safety programs that, among other things, reduce or prevent injuries and deaths resulting from speeding motor vehicles, driving while impaired by alcohol and or drugs, motorcycle accidents, school bus accidents, and unsafe driving behavior. 23 U.S.C. 402(a). Section 402 funds are also available to state programs that encourage the proper use of occupant protection devices and improve law enforcement services in motor vehicle accident prevention, traffic supervision, and post-accident procedures. Id.

Buy America provides that NHTSA “shall not obligate any funds authorized to be appropriated to carry out the Surface Transportation Assistance Act of 1982 (96 Stat. 2097) or [Title 23] and administered by the Department of Transportation, unless steel, iron, and manufactured products used in such project are produced in the United States.” 23 U.S.C. 313. However, NHTSA may waive those requirements if “(1) their application would be inconsistent with the public interest; (2) such materials and products are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) the inclusion of domestic material will increase the cost of the overall project contract by more than 25 percent.” 23 U.S.C. 313(b); 49 CFR 1.95(f).

MBHS seeks a waiver to purchase one (1) Leica Flexline TS02 Plus R500 Reflectorless total station for its subgrantee, the Maine State Police, using Federal grant funds, at a cost of $12,925. A total station is an electronic/optical instrument used in modern surveying and accident reconstruction. Specifically, a total station is an electronic theodolite integrated with an electronic distance meter to read slope distances from the instrument to a particular point. According to MBHS, the total station provides law enforcement with the equipment necessary to provide accurate and detailed crash reconstruction to aid in improving highway safety and for use with the enforcement of traffic safety laws. MBHS states that the total station reduces the time officers need to stand in the roadway with a prism to mark evidence at crash scenes. In addition, with a total station, evidence can be plotted from the side of the road after a roadway has been opened to traffic.

MBHS states that there are no total station models that are manufactured or assembled in the United States. In support of its waiver, MBHS cites to NHTSA's determination that a Buy America waiver was appropriate for the North Carolina Highway Safety Office to purchase a Nikon Nivo 5M plus Reflectorless total station. See 80 FR 72480 (November 19, 2015). In that notice, the agency noted that both North Carolina and NHTSA performed market analyses which revealed that all total station equipment are foreign made.^[1] Id. at 72481. At this time, the agency is unaware of any total stations produced domestically.

NHTSA agrees that the total stations advance the purpose of section 402 to improve law enforcement services in motor vehicle accident prevention and post-accident reconstruction and enforcement. A total station is an on-scene reconstruction tool that assists in the determination of the cause of the crash and can support crash investigations. It is an electronic/optical instrument that specializes in surveying with tools to provide precise measurements for diagraming crash scenes, including a laser range finder and a computer to assist law enforcement to determine post-accident reconstruction. The total station system is designed to gather evidence of the events leading up to, during and following a crash. These tools are used to gather evidence to determine such facts as minimum speed at the time of a crash, the critical speed of a roadway curve, the distance a vehicle may have traveled when out of control and other factors that involve a crash investigation. In some instances, the facts collected through the use of a total station are used to form a basis of a criminal charge or evidence in a criminal prosecution.

Based upon our recent market analysis, we are unaware of any total station equipment that is manufactured domestically. Ibid. Since a total station is unavailable from a domestic manufacturer and the equipment would assist in post-accident reconstruction and enforcement to advance the purpose of 23 U.S.C. 402, a Buy America waiver is appropriate. NHTSA invites public comment on this conclusion.

In light of the above discussion, and pursuant to 23 U.S.C. 313(b)(2), NHTSA finds that it is appropriate to grant a waiver from the Buy America requirements to MBHS in order to purchase the Leica total station equipment. This waiver applies to Maine and all other states seeking to use section 402 funds to purchase Leica total stations for the purposes mentioned herein. This waiver is effective through fiscal year 2016 and expires at the conclusion of the fiscal year (September 30, 2016). In accordance with the provisions of section 117 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy of Users Technical Corrections Act of 2008 (Pub. L. 110-244, 122 Stat. 1572), NHTSA is providing this notice as its finding that a waiver of the Buy America requirements is appropriate for the Leica total station.

Written comments on this finding may be submitted through any of the methods discussed above. NHTSA may reconsider this finding if, through comment, it learns additional relevant information regarding its decision to grant MBHS's waiver request.

This finding should not be construed as an endorsement or approval of any products by NHTSA or the U.S. Department of Transportation. The United States Government does not endorse products or manufacturers.

Authority: 23 U.S.C. 313; Pub. L. 110-161.

Issued in Washington, DC, on March 4, 2016 under authority delegated in 49 CFR part 1.95.

Paul A. Hemmersbaugh,

Chief Counsel.

Footnotes

1.  In our November 19, 2015 notice, we noted that the combined market research of North Carolina and NHTSA found that the following manufacturers produced foreign made total stations: CT Berger (China); Leica (Switzerland); Leica Flexline TS02 Plus R500 Reflectorless Total Station (Japan); Spectra Precision (Japan); Northwest Instruments (China); Topcon (Japan); Trimble (Sweden); Hi-Target Instrument Surveying Co. Ltd. (China); geo-Fennel GmbH (Germany); Hilti (Liechtenstein); North Surveying (Spain); South Precision Instrument (China); Ruide Surveying Instrument Co. (China); Pentex (Japan/China); and Topcon (Japan, China and Thailand).