[Federal Register Volume 89, Number 49 (Tuesday, March 12, 2024)]
[Notices]
[Pages 17892-17895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05181]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2023-0040]


Request for Information on the Use of Manufactured Products in 
Highway Projects

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

ACTION: Notice; request for information (RFI).

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SUMMARY: On March 17, 2023, FHWA published a request for comments on 
its existing general applicability waiver for manufactured products 
under its Buy America waiver authorities. Following the review and 
consideration of comments, FHWA is proposing to discontinue the waiver. 
The FHWA is also proposing standards for applying Buy America 
requirements to manufactured products should the waiver be 
discontinued. To ensure the continued effective implementation of FHWA 
programs that would be subject to new requirements for manufactured 
products, FHWA is seeking additional information on the domestic 
availability of specific manufactured products commonly used in FHWA-
funded projects. To ensure the Agency has the most comprehensive and 
current information available on the domestic market for manufactured 
products used in FHWA infrastructure projects, FHWA is especially 
interested in comments detailing domestic materials sourcing, market 
readiness, timeliness of product supply, and other considerations.

DATES: Comments must be received on or before May 13, 2024. Late-filed 
comments will be considered to the extent practicable.

ADDRESSES: To ensure that you do not duplicate your docket submissions, 
please submit comments by only one of the following means:
     Federal eRulemaking Portal: Go to www.regulations.gov and 
follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, 
Room W12-140, Washington, DC 20590;
     Hand Delivery: West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 
p.m. E.T., Monday through Friday, except Federal holidays. The 
telephone number is (202) 366-9329;
     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 the U.S. Department of Transportation'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 U.S. 
Government Publishing Office's website at: www.GovInfo.gov.

Confidential Business Information

    Confidential Business Information (CBI) is commercial or financial

[[Page 17893]]

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 49 CFR 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 via mail or 
[email protected] via email. Any comment submissions that FHWA 
receives that are not specifically designated as CBI will be placed in 
the public docket for this matter.

Background

    Section 313(a) of Title 23, U.S.C. requires that all steel, iron, 
and manufactured products used in FHWA-funded projects be produced in 
the United States. In 1983, FHWA issued a public interest waiver of 
general applicability of FHWA's Buy America requirement for 
manufactured products, known as the Manufactured Products General 
Waiver. See 48 FR 1946 (Jan. 17, 1983); 48 FR 53099 (Nov. 25, 1983). 
Based on the Manufactured Products General Waiver, FHWA does not 
currently apply its Buy America requirements to manufactured products 
except for predominantly iron or steel manufactured products and 
predominantly iron or steel components of manufactured products, which 
must comply with FHWA's existing Buy America requirements for iron or 
steel. For all predominantly iron or steel materials, products, or 
components delivered to a project site for permanent incorporation into 
a highway project using Title 23, U.S.C. funds, all manufacturing 
processes, including applications of a coating, must occur in the 
United States. See 23 CFR 635.410. In addition, FHWA's Buy America 
requirement applies to all contracts, regardless of the funding source, 
of any contract within the scope of a determination under the National 
Environmental Policy Act involves an obligation of Title 23, U.S.C. 
funds. See 23 U.S.C. 313(h).
    On November 15, 2021, the President signed the Bipartisan 
Infrastructure Law (BIL), enacted as the Infrastructure Investment and 
Jobs Act (Pub. L. 117-58) into law. The BIL includes the Build America, 
Buy America (BABA) Act. BIL, div. G Sec. Sec.  70901-53. 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 the 
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.
    On March 17, 2023, pursuant to Sec.  70914(d) of BABA, FHWA 
published a Request for Comment (RFC) on the Manufactured Products 
General Waiver in the Federal Register (``Manufactured Products RFC''). 
See 88 FR 16517. The FHWA received 9,496 comments in response to the 12 
questions that were posed. Based on the contents of that review, and 
after considering the President's policy, as embodied in Executive 
Order 14005, ``Ensuring the Future Is Made in All of America by All of 
America's Workers,'' to maximize the use of goods, products, and 
materials produced in the United States; the intent of Congress, as 
expressed in BABA's preference against general applicability waivers; 
the purpose and goals of domestic content procurement preferences and 
waivers; and FHWA's original rationale for issuing the Manufactured 
Products General Waiver compared to the current domestic manufacturing 
situation, FHWA is proposing to discontinue the Manufactured Products 
General Waiver; at the same time, FHWA is issuing a notice of proposed 
rulemaking (NPRM) to propose the standards for when a manufactured 
product will be considered to be ``produced in the United States'' and 
therefore be Buy America-compliant (``Manufactured Products NPRM'').\1\ 
Interested parties should refer to the NPRM for the reasons and 
discussion concerning the proposed discontinuance of the waiver and 
proposed regulations.
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    \1\ Buy America Requirements for Manufactured Products, RIN 
2125-AG13, Docket No. FHWA-2023-0037.
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    As further explained in the NPRM, the proposed Buy America 
requirements for manufactured products mirror the requirements for 
manufactured products to be produced under Sec.  70912(6)(B) of BABA 
and are substantially aligned with the applicable definitions and 
requirements for manufactured products in the Office of Management and 
Budget's guidance implementing BABA at 2 CFR part 184. To be ``produced 
in the United States,'' a product would need to be manufactured in the 
United States and have the cost of components of the manufactured 
product that are mined, produced, or manufactured in the United States 
be greater than 55 percent of the total cost of all components of the 
manufactured product.\2\
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    \2\ Under FHWA's proposed requirements, manufactured products 
would not be subject to any other Buy America requirement or 
domestic content procurement preference, with two exceptions. First, 
all iron or steel components of precast concrete products that are 
classified as manufactured products would need to meet FHWA's 
existing Buy America requirements for iron or steel. Second, for 
iron or steel cabinets or other enclosures of intelligence 
transportation systems (ITS) and other electronic hardware systems 
that are installed in the highway right-of-way or other real 
property and classified as manufactured products, such iron or steel 
cabinets and other enclosures would also need to meet FHWA's 
existing Buy America requirements for iron or steel.
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    As stated in the Manufactured Products NPRM, FHWA recognizes that 
certain types of manufactured products incorporated into FHWA-funded 
projects may not be currently available from domestic sources. To 
identify the manufactured products to which applying a Buy America 
requirement for manufactured products could cause those products to be 
rendered unavailable for FHWA-funded projects, FHWA is seeking 
additional information and documentation on products that are commonly 
procured or are expected to be procured using FHWA financial assistance 
that may not be currently manufactured domestically or do not otherwise 
meet the 55 percent domestic content standard being proposed in the 
NPRM. To ensure FHWA has the most comprehensive and current information 
available on the domestic market for manufactured products used in FHWA 
projects, FHWA is specifically seeking detailed comments on domestic 
materials sourcing, market readiness, pricing, other product supply

[[Page 17894]]

considerations, and whether specific manufactured products or their 
components are manufactured in the United States for manufactured 
products used in projects that receive FHWA financial assistance.
    The Manufactured Products RFC posed the following questions to 
manufactured product suppliers:
    4. With respect to domestic manufacturers of products previously 
procured or expected to be procured using FHWA financial assistance, do 
you expect to expand your domestic manufacturing based on the increase 
in demand created by recent Federal investments? If so, by how much and 
over what time period? If applicable, what is the timeline to bring 
online additional capacity compliant with BABA?
    In response to question 4, manufacturers who responded appeared 
evenly split between expecting to expand domestic manufacturing and not 
to expand domestic manufacturing. Of those who were not planning to 
expand, the reasons for not expanding included having existing unused 
capacity, a lack of sufficient domestic demand, and the high relative 
costs of expanding. Several manufacturers were still evaluating 
expanding domestic manufacturing while two others reported either 
already expanding capacity or that they are currently producing 
products meeting the standard for manufactured products under BABA. For 
those who expected that they would need to expand their domestic 
manufacturing, the timeline to increase domestic capacity was either 
stated to be multiple years or an unknown amount of time.
    Commenters were also asked in the Manufactured Products RFC:
    Are there specific types of manufactured products that are widely 
used on Federal-aid highway projects for which a large portion of the 
components are known to not be produced in the United States or not 
produced in sufficient quantities? If so, what are those components, 
what manufacturer produces them, and where are they primarily produced? 
What are the obstacles to having those components produced in the 
United States? Please provide data to support your comment.
    In response, more than two-thirds of commenters indicated there are 
frequently used manufactured products and components of manufactured 
products that are currently not widely available from domestic 
producers. Some of the most frequently mentioned products and 
components included the following: assembled electronics; electronic 
components; lighting systems and LEDs; ITS, and reflective materials. 
Commenters noted obstacles to having those components produced in the 
United States, which included that components and raw materials are not 
readily available in the United States, needing time for U.S. 
production to scale up, low demand and thus low incentives for domestic 
production, potential unforeseen shortages, subsidized production in 
other countries, the likelihood of more expensive production in the 
United States, and intellectual property constraints.
    The FHWA is interested in promptly obtaining more information on 
the availability of manufactured products that can meet the standard 
proposed in the Manufactured Products NPRM in order to assess if 
sufficient quantities of products are currently available to comply 
with the proposed requirements or whether sufficient products would be 
available in the future, and if so, when. The FHWA is also interested 
in obtaining more information on the cost of manufactured products that 
can meet the standard proposed in the Manufactured Products NPRM, 
relative to manufactured products available from foreign or non-
compliant domestic sources.
    On August 16, 2023, DOT issued a ``Waiver of Buy America 
Requirements for De Minimis Costs and Small Grants'' (De Minimis and 
Small Grants Waiver). 88 FR 55817. The De Minimis and Small Grants 
Waiver covers the application of Buy America requirements to products 
under a single financial assistance award for which (1) the total value 
of non-compliant products is no more than the lesser of $1,000,000 or 5 
percent of total applicable costs for the project; or (2) the amount of 
Federal financial assistance applied to the project, through awards or 
subawards, is below $500,000. The FHWA's statutory Buy America 
requirements for manufactured products are covered under the scope of 
the De Minimis and Small Grants waiver, so it would apply to 
manufactured products covered by that waiver even if the Manufactured 
Products General Waiver were to be rescinded.

Request for Comments and Information

    The FHWA requests information from the public on the following 
products or categories of products identified in responses to the 
Manufactured Products RFC as being broadly unavailable from Buy 
America-compliant sources: \3\
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    \3\ Commenters on the Manufactured Products RFC also cited 
certain other products that FHWA believes would likely be considered 
construction materials under the standards of 2 CFR part 184 and 
would thus not be subject to the requirements for manufactured 
products that are being proposed in the NPRM.

 Retroreflective sheeting
 LED lamps/lighting systems
 Utility products
 ITS hardware
 Traffic signals and controllers
 Traffic cameras
 Changeable message signs
 Vehicle detection equipment.

    The FHWA is also interested in receiving information on other 
manufactured products commonly used on FHWA-assisted projects that are 
not listed above, but which the commenter believes may not be available 
from domestic sources or may be available only at higher prices than 
from foreign sources or from non-compliant domestic sources. In 
identifying such products, note that some manufactured items may be 
classified as iron or steel products or as construction materials, 
consistent with the definitions of those items found in the 
Manufactured Products NPRM and in 2 CFR part 184.
    For each of these products, and based on your understanding of the 
Manufactured Product NPRM's proposed requirements, FHWA is requesting 
information under five general topic areas: (1) domestic materials 
sourcing and manufacturing; (2) market readiness; (3) delivery lead 
times; (4) pricing; and (5) other considerations.
    When providing this information, FHWA requests that all respondents 
clearly specify the products for which you are providing responses. 
When providing information on other manufactured products commonly used 
on FHWA-assisted products that are not specifically listed above, 
please provide a detailed description of the product.

1. Domestic Materials Sourcing and Manufacturing

    a. For each of the products or categories of products you 
identified above, please specify whether the product meets the 
Manufactured Product NPRM's proposed standards for being considered 
``produced in the United States,'' as described above. (Yes or No).
    b. If you answered ``Yes'' to Topic 1(a), to the best of your 
knowledge:
    i. Please identify all manufacturers that can either meet the 
Manufactured Products NPRM's proposed requirements or can currently 
manufacture products or categories of products you specified in the 
United States. For products that meet the condition of being 
manufactured in the

[[Page 17895]]

United States, please identify the manufacturing location and 
percentage of components manufactured in the United States, as 
calculated by cost of components (if known).
    ii. What is the current production capacity of the products that 
can meet the Manufactured Products NPRM's proposed requirements?
    iii. What is the anticipated growth in capacity to produce products 
that are compliant with the Manufactured Products NPRM's proposed 
requirements over the next 5 years? Please explain.
    iv. For products able to meet the Manufactured Products NPRM's 
proposed requirements, what is the estimated lead time from purchase 
order to delivery to the project site? Has this lead time increased or 
decreased in recent years?
    c. If you answered ``No'' to Topic 1(a):
    i. What actions are manufacturers taking or could take to increase 
the manufacturing of products that will meet the Manufactured Products 
NPRM's proposed requirements?
    ii. What additional support or incentives (e.g., financial, 
rulemaking certainty) are needed to ensure that a sufficient supply of 
products that meet the Manufactured Products NPRM's proposed 
requirements will be available to meet the demand for compliant 
products on Federal financial assistance projects?
    iii. How long might it take to implement the steps needed to 
increase or begin production of manufactured products that are 
compliant with the Manufactured Products NPRM's proposed requirements?
    iv. If a plan is in place to manufacture products compliant with 
the Manufactured Products NPRM's proposed requirements, what is the 
volume of specific products that will be in compliance with these 
requirements and in what time frame?
    v. Will the volume of manufactured products that are compliant with 
the Manufactured Products NPRM's proposed requirements be ramped up 
over time, and, if so, at what annual growth rate?
    vi. What are the limiting factors for the product's ability to meet 
criteria for compliance under the Manufactured Products NPRM? For 
example, are there particular components of these products that cannot 
be mined, produced, or manufactured in the United States, and which 
make up a significant portion of the cost of the manufactured product? 
If so, please describe each component separately, and indicate 
approximately what percent of the total cost of all components of the 
manufactured products it represents.

2. Market Readiness

    a. For each product you identified above, please provide your 
observations on the current and near-term domestic demand expected for 
these products or categories of products. Does this estimate of future 
demand take into account increases in Federal funding amounts for 
infrastructure under the BIL, enacted as the Infrastructure Investment 
and Jobs Act (Pub. L. 117-58) and the Inflation Reduction Act (Pub. L. 
117-169)? Please explain.
    b. Please provide information regarding whether the current and/or 
near-term domestic manufacturing capacity would be adequate to meet the 
expected market demand. Please specify any factors helping or 
preventing domestic manufacturing industry from meeting the expected 
demand today and in the near-term and provide information on the 
current and expected availability or unavailability of key components 
or sub-components of the product or category of products you specified.
    c. Are there external factors affecting the supply of product that 
makes it difficult to credibly communicate the existence of increased 
demand, or to credibly commit that such demand will be forthcoming? If 
so, please describe those challenges as specifically as possible.

3. Timing

    a. Where known, for each product or category of products for which 
you are providing information, please specify the current range of 
expected product delivery timeframes. Are any existing supply chain 
delays applicable or anticipated for the product or critical components 
of the product(s)?
    b. Please provide information, if available, on expected delivery 
timeframe outlooks through the near-term future. Include information, 
if known, on whether current timing delivery concerns are related to 
any temporary disruption.
    c. Provide information on the current and expected near-term 
average customer delivery time.
    d. Provide information regarding global supply chain constraints, 
local permitting, safety requirements, and needs that may affect 
delivery timeframes or extend installation time.

4. Pricing

    a. For each product identified above as being may be available only 
at higher prices than from foreign sources or from non-compliant 
domestic sources list the price differential in percentage terms 
between foreign and domestic sources of the product.

5. Other Considerations

    a. If you answered ``No'' to Topic 1(a), are the quantities of the 
project typically used on FHWA-assisted projects small enough that they 
might fall below the thresholds specified in the De Minimis and Small 
Grants Waiver and thus be subject to that waiver?
    b. Are there any other considerations that FHWA should take into 
account regarding production, products, product quality, or components 
of manufactured products used in FHWA-funded projects that are not 
covered by questions 1 through 3?

Shailen P. Bhatt,
Administrator, Federal Highway Administration.
[FR Doc. 2024-05181 Filed 3-11-24; 8:45 am]
BILLING CODE 4910-22-P