[Federal Register Volume 88, Number 77 (Friday, April 21, 2023)]
[Notices]
[Pages 24651-24652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08446]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2022-0027]


Notice and Request for Comment on FHWA's Review of Its General 
Applicability Waiver of Buy America Requirements for Manufactured 
Products

AGENCY: Federal Highway Administration (FHWA), U.S. Department of 
Transportation (DOT).

ACTION: Notice; extension and reopening of comment period.

-----------------------------------------------------------------------

SUMMARY: The FHWA is extending the comment period for a request for 
comments on its existing general applicability waiver for manufactured 
products under FHWA's Buy America waiver authorities, which was 
published on March 17, 2023, in the Federal Register. The comment 
period is currently set to close on April 17, 2023. The extension is 
based on concern expressed by a number of stakeholders that the 
original comment period was inadequate to meaningfully review the 
request for comments, analyze the impact of any possible changes to the 
existing general applicability waiver for manufactured products, gather 
information, and provide comprehensive comments. The FHWA recognizes 
that others interested in commenting may have similar concerns and 
agrees that the comment period should be extended. Therefore, the 
comment period is reopened and the closing date for comments is May 22, 
2023, which will provide stakeholders and others interested in 
commenting additional time to submit responses to the docket.

DATES: Comments must be received on or before May 22, 2023. Late-filed 
comments will be considered to the extent practicable.

ADDRESSES: Please submit your comments to the Federal eRulemaking 
Portal at www.regulations.gov, Docket: FHWA-2022-0027, and follow the 
online instructions for submitting comments.
    Instructions: You must include the agency name and docket number at 
the beginning of your comments. Except as described below under the 
heading ``Confidential Business Information,'' all submissions 
received, including any personal information provided, will be posted 
without change or alteration to www.regulations.gov. For more 
information, you may review DOT's complete Privacy Act Statement 
published in the Federal Register on April 11, 2000 (65 FR 19477).

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 [email protected]. For legal questions, please 
contact Mr. David Serody, FHWA Office of the Chief Counsel, 202-366-
4241, or via email at [email protected]. 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 and Filing

    A copy of this notice, all comments received on this notice, and 
all background material may be viewed online at www.regulations.gov 
using the docket number listed above. Electronic retrieval assistance 
and guidelines are also available at www.regulations.gov. An electronic 
copy of this document also may be downloaded from the Office of the 
Federal Register's website at: www.FederalRegister.gov and the 
Government Publishing Office's website at: www.GovInfo.gov.

Confidential Business Information

    Confidential Business Information (CBI) is commercial or financial 
information that is both customarily and actually treated as private by 
its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), 
CBI is exempt from public disclosure. If your comments responsive to 
this notice contain commercial or financial information that is 
customarily treated as private, that you actually treat as private, and 
that is relevant or responsive to this notice, it is important that you 
clearly designate the submitted comments as CBI. You may ask FHWA to 
give confidential treatment to information you give to the agency by 
taking the following steps: (1) Mark each page of the original document 
submission containing CBI as ``Confidential''; (2) send FHWA, along 
with the original document, a second copy of the original document with 
the CBI deleted; and (3) explain why the information you are submitting 
is CBI. The FHWA will protect confidential information complying with 
these requirements to the extent required under applicable law. If DOT 
receives a FOIA request for the information that the applicant has 
marked in accordance with this notice, DOT will follow the procedures 
described in its FOIA regulations at 49 CFR 7.29. Only information that 
is marked in accordance with this notice and ultimately determined to 
be exempt from disclosure under FOIA and Sec.  7.29 will not be 
released to a requester or placed in the public docket of this notice. 
Submissions containing CBI should be sent to: Mr. Brian Hogge, FHWA, 
1200 New Jersey Avenue SE, HICP-20, Washington, DC 20590. Any comment 
submissions that FHWA receives that are not specifically designated as 
CBI will be placed in the public docket for this matter.

Background

    On November 15, 2021, the President signed into law the Bipartisan 
Infrastructure Law (BIL), enacted as the Infrastructure Investment and 
Jobs Act (IIJA), (Pub. L. 117-58). The BIL includes the Build America, 
Buy America Act (``BABA''). BIL, div. G sections 70901-27. Section 
70914(d) of BABA requires Federal Agencies to review existing general 
applicability waivers of Buy America requirements by publishing in the 
Federal Register a notice that: (i) describes the justification for a 
general applicability waiver; and (ii) requests public comments for a 
period of not less than 30 days on the continued need for the general 
applicability waiver. Following the initial notice and review and 
consideration of comments received, the Agency must publish in the 
Federal Register a determination on whether to continue or discontinue 
the general applicability waiver. BABA section 70914(d).
    On March 17, 2023, at 88 FR 16517, in accordance with section 
70194(d) of BABA, FHWA published in the Federal Register a notice of a 
review of its public interest waiver of general applicability of FHWA's 
Buy America requirement for manufactured products, known as the 
Manufactured Products General Waiver, and requested comments. The 
notice set a closing date of April 17, 2023, for the comment period. In 
a comment submitted in response to that notice, a coalition of 
stakeholders has expressed concern that this closing date does not 
provide sufficient time to review and provide comprehensive comments 
and

[[Page 24652]]

requested a 90-day extension of the comment period.\1\
---------------------------------------------------------------------------

    \1\ This coalition was comprised of the Associated General 
Contractors of America, American Association of State Highway and 
Transportation Officials, American Concrete Pipe Association, 
American Council of Engineering Companies, American Highway Users 
Alliance, American Road & Transportation Builders Association, 
American Society of Civil Engineers, American Traffic Safety 
Services Association, Associated Equipment Distributors, National 
Asphalt Pavement Association, National Association of Surety Bond 
Producers, National Ready Mixed Concrete Association, National 
Stone, Sand & Gravel Association, National Utility Contractors 
Association, Portland Cement Association, Power and Communication 
Contractors Association, Surety & Fidelity Association of America, 
U.S. Chamber of Commerce, and Water and Sewer Distributors of 
America. Comment from Coalition of Stakeholders (Mar. 31, 2022), 
https://www.regulations.gov/comment/FHWA-2022-0027-0012.
---------------------------------------------------------------------------

    The FHWA recognizes that others interested in commenting may have 
similar concerns and agrees that the comment period should be extended. 
The FHWA, however, does not agree that the comment period should be 
extended for such a long duration and notes that many stakeholders have 
already provided substantive, responsive comments. The BABA is meant to 
strengthen domestic manufacturing by expanding the coverage and 
application of Buy America preferences in Federal financial assistance 
programs for infrastructure. Consistent with this goal, BABA section 
70914(d) also requires Agencies to review existing waivers of general 
applicability that effectively limit the extent to which Buy America 
preferences are applied. To carry out this purpose, FHWA believes it 
necessary to proceed with the review of comments submitted on the 
review of the Manufactured Products General Waiver as expeditiously as 
possible, while also providing sufficient time for all commenters to 
provide information on the issues raised in the March 17 notice. While 
FHWA agrees with the coalition of stakeholders that more than 30 days 
is needed to achieve these dual purposes, FHWA believes that extending 
the comment period by 90 days would unnecessarily delay FHWA's ability 
to review comments and publish a determination on whether to continue 
or discontinue the Manufactured Products General Waiver under BABA 
section 70914(d)(2)(B) in a timely manner. For that reason, FHWA is 
reopening and extending the comment period by 30 days for these 
organizations and others to submit comments. The closing date for the 
comment period is May 22, 2023.

Andrew Rogers,
Deputy Administrator, Federal Highway Administration.
[FR Doc. 2023-08446 Filed 4-20-23; 8:45 am]
BILLING CODE 4910-22-P