Request for Information on the Use of Manufactured Products in Highway Projects, 17892-17895 [2024-05181]
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Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Notices
described below, pursuant to 18 CFR
part 806.17©(4), for the time period
specified above:
1. Cherokee Pharmaceuticals LLC,
General Permit Approval of Coverage
No. GP–01–20240204, Riverside
Borough, Northumberland County, Pa.;
groundwater remediation system
withdrawal approved up to 0.600 mgd
(30-day average); Approval Date:
February 9, 2024.
Authority: Public Law 91–575, 84
Stat. 1509 et seq., 18 CFR parts 806 and
808.
Authority) as an additional source of
consumptive use, with no changes to
existing quantities; Approval Date:
February 23, 2024.
3. Murry Development Corporation—
Crossgates Golf Club, Docket No.
20231223, Manor Township and
Millersville Borough, Lancaster County,
Pa.; modification approval to change the
consumptive use mitigation method;
Approval Date: February 29, 2024.
Authority: Public Law 91–575, 84
Stat. 1509 et seq., 18 CFR parts 806 and
808.
Dated: March 7, 2024.
Jason E. Oyler,
General Counsel and Secretary to the
Commission.
Dated: March 7, 2024.
Jason E. Oyler,
General Counsel and Secretary to the
Commission.
[FR Doc. 2024–05196 Filed 3–11–24; 8:45 am]
[FR Doc. 2024–05197 Filed 3–11–24; 8:45 am]
BILLING CODE 7040–01–P
BILLING CODE 7040–01–P
SUSQUEHANNA RIVER BASIN
COMMISSION
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Projects Approved for Minor
Modifications
[Docket No. FHWA–2023–0040]
Susquehanna River Basin
Commission.
ACTION: Notice.
AGENCY:
Request for Information on the Use of
Manufactured Products in Highway
Projects
This notice lists the minor
modifications approved for a previously
approved project by the Susquehanna
River Basin Commission during the
period set forth in DATES.
DATES: January 1, 2024–February 29,
2024.
SUMMARY:
Susquehanna River Basin
Commission, 4423 North Front Street,
Harrisburg, PA 17110–1788.
FOR FURTHER INFORMATION CONTACT:
Jason E. Oyler, General Counsel and
Secretary to the Commission, telephone:
(717) 238–0423, ext. 1312; fax (717)
238–2436; email: joyler@srbc.net.
Regular mail inquiries may be sent to
the above address.
SUPPLEMENTARY INFORMATION: This
notice lists previously approved
projects, receiving approval of minor
modifications, described below,
pursuant to 18 CFR 806.18 or to
Commission Resolution Nos. 2013–11
and 2015–06 for the time period
specified above.
1. Koppers Inc., Docket No. 20231209,
Clinton Township, Lycoming County,
Pa.; correction in Section 3 of source
name; Correction Issue Date: January 9,
2024.
2. Dart Container Corporation of
Pennsylvania, Docket No. 20040910–3,
Upper Leacock Township, Lancaster
County, Pa.; modification approval to
add public water supply (Upper
Leacock Township Municipal
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ADDRESSES:
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Federal Highway
Administration (FHWA), Department of
Transportation (DOT).
ACTION: Notice; request for information
(RFI).
AGENCY:
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
SUMMARY:
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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 Brian.Hogge@dot.gov. For legal
questions, please contact Mr. David
Serody, FHWA Office of the Chief
Counsel, (202) 366–4241, or via email at
David.Serody@dot.gov. 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
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Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Notices
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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 brian.hogge@dot.gov 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 FHWAfunded 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
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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 §§ 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
§ 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
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17893
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.
As further explained in the NPRM,
the proposed Buy America requirements
for manufactured products mirror the
requirements for manufactured products
to be produced under § 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
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
1 Buy America Requirements for Manufactured
Products, RIN 2125–AG13, Docket No. FHWA–
2023–0037.
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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Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Notices
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
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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
3 Commenters
on the Manufactured Products RFC
also cited certain other products that FHWA
believes would likely be considered construction
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•
•
•
•
•
•
•
•
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
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.
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Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Notices
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
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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 nearterm 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
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17895
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
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Revised Supplemental Environmental
Assessment and Finding of No
Significant Impact for the Proposed I–
5 Rose Quarter Improvement Project
Federal Highway
Administration (FHWA), Department of
Transportation (USDOT).
ACTION: Notice of availability.
AGENCY:
The FHWA is issuing this
notice to advise other Federal, State,
and local agencies, Tribes, and the
public that a Revised Supplemental
Environmental Assessment (RSEA) and
Finding of No Significant Impact
(FONSI) have been prepared in
accordance with the National
Environmental Policy Act for the
proposed Interstate–5 (I–5) Rose Quarter
Improvement Project to improve safety
and operations on I–5 between
Interstate–84 and Interstate–405 in the
Rose Quarter District of downtown
Portland, Oregon.
FOR FURTHER INFORMATION CONTACT:
Keith Lynch, Division Administrator,
Federal Highway Administration, 530
Center Street NE, Suite 420, Salem, OR
97301; Telephone: (503) 399–5740.
Thomas Parker, Environmental Program
Manager, Federal Highway
Administration, 530 Center Street NE,
Suite 420, Salem, OR 97301; Telephone:
(503) 316–2549; Email:
thomas.w.parker@dot.gov. Megan
Channell, Rose Quarter Project Director,
ODOT Region 1, 123 NW Flanders St.,
Portland, OR 97209; Telephone: 971–
SUMMARY:
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]]>Agencies
[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).
-----------------------------------------------------------------------
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
