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Notice of Buy America Waiver Request

Action: Notice, request for comments.

Web posting date: 04/10/2024

Federal Register Notice of Finding Publication Date: To be determined.

Effective Date of Federal Register: To be determined.

Close of public comment period : 5 days following the effective date.

Summary: The Federal Highway Administration (FHWA) is seeking comments on whether a waiver of the Buy America requirements under 23 CFR § 635.410(b) should be granted to the Utah Department of Transportation (UDOT) to permit the purchase and installation of 16 Wyssen Tower Remote Avalanche Control Systems (Wyssen Tower RACS) along Mount Superior overlooking SR-210 in Little Cottonwood Canyon, Utah. The new system will allow UDOT to reduce its dependence on military artillery for avalanche mitigation and help eliminate the need to fire artillery over buildings and people.

The FHWA will only consider a Buy America waiver when the conditions of 23 CFR § 635.410(c) have been met. This includes: (1) when the application of the requirements under § 635.410(c) would be inconsistent with the public interest; or (2) when steel and iron products are not produced in the United States in sufficient and reasonably available quantities, which are of a satisfactory quality. The Wyssen RACS includes a tower, deployment box, charges, and a reinforced foundation. UDOT is seeking a waiver for the tower, deployment box, and charges, as those contain foreign sourced steel and these components are designed to work together as a complete, proprietary system. The reinforced foundation, consisting of anchor kits and a base plate, will be domestically sourced and compliant with FHWA's Buy America requirements.

In 2020, the U.S. Army asked all members of the Avalanche Artillery Users of North America Committee (AAUNAC) 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. UDOT has committed to ending the use of the howitzer by 2025 and replacing it with the 16 Wyssen Tower RACS.

FHWA previously approved a Buy America waiver for a different type of RACS in 2012. These systems have been successful in mitigating avalanches and preventing accidents that cost lives. UDOT is part of the Transportation Avalanche Research Pool (TARP), which has identified three types of RACS in use in the United States, including gas-delivered explosions, propelled explosive charges, and suspended explosive charges. UDOT's only known domestic supplier of RACS is Alpine Infrastructure; however, that company uses gas-delivered explosions, 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 needed to operate the system. 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.

Of the three primary suppliers of RACS to the United States (Wyssen, MND, and Inauen-Schatti), all are foreign manufactures who do not produce Buy America-compliant products. UDOT has selected the Wyssen Tower RACS, which utilizes suspended explosive charges, as being the best suited for the project's unique terrain. In addition, this will provide operational consistency, since UDOT currently operates RACS from Wyssen and MND. RACS from MND, however, use gas-delivered explosions, which, as noted above, would not be suitable for this project's terrain. Inauen-Schatti primarily produces propelled explosive chargers. While they do make RACS with suspended explosive charges, none have been installed in the United States. In addition, the current service to US operations from Inauen-Scatti does not meet the mission critical requirements from UDOT.

The FHWA will consider all comments received in the initial 15-day comment period during our evaluation of the waiver request. Comments received after this period, but before notice of our finding is published in the Federal Register, will be considered to the extent practicable. Follow-up coordination on the comments received may result in a delay in the publication of our waiver finding in the Federal Register. Comments received during the 5-day comment period after notice of our finding is published in the Federal Register will be reviewed, but the finding will continue to remain valid. Comments received during the comment period after the effective date of the finding may influence the FHWA's decision to terminate or modify a finding.

Contact: Rebecka Stromness; UDOT Project Manager, rstromness@utah.gov, 801-887-3470

Request letter (.pdf, 892 kb)
Other supporting documentation (.pdf, 742 kb)

Comments

LA 04/10/2024
The FHWA Buy America requirements outlined in 23 CFR §635.410(b) are severely outdated. May FHWA consider granting a waiver to accommodate UDOT's need for ensuring safe operations.

Stephen Vital 04/10/2024
What is the NEPA/Environmental Impact of the 14 remote towers? How will the remote tower frequencies effect wildlife? Is their archaeological significance in this area that would be impact by the development? Any Native American historical sites or findings in this area? What are the long-term effects to the area if installed and operated for a long term?

Rick Crawford 04/10/2024
It is my understanding that the new policy eliminates the requirement to submit requests for waivers. Based upon the recent OMB policy, the new policy applies to manufacturered products, not just iron and steel

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Updated: 04/26/2024
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