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Federal Register Notices - (1) Buy America Notice of Proposed Rule Making for Manufactured Products; (2) Request for Information on Use of Manufactured Products in Highway Projects

FHWA published two Buy America related actions in the Federal Register this morning. First, is a Notice of Proposed Rulemaking (NPRM) in which FHWA proposes to discontinue its general waiver of Buy America requirements for manufactured products. Second, is a Request for Information (RFI) seeking information on the domestic availability of specific manufactured products commonly used in FHWA-funded projects.

 

Both Federal Register Notices are attached for your use, or you may access them directly using the links below.

 

 

FHWA believes that the Manufactured Products General Waiver is overly broad, no longer in line with the purpose of domestic content procurement preferences and waivers, and therefore no longer serves the public interest. The FHWA is thus proposing to discontinue the Manufactured Products General Waiver. In doing so, FHWA seeks to encourage manufacturers to supply Buy America-compliant products to FHWA-funded projects and to encourage other manufacturers to shift their production to the United States to take advantage of this market.

 

At the same time, FHWA acknowledges that there may be some products that are not currently produced in the United States and, for various reasons, might not be able to be produced in the United States in the near future. For such products, FHWA intends to consider whether it should propose any targeted waivers, with these waivers providing a timeline to encourage manufacturers to ramp up domestic production. To that end, FHWA is concurrently publishing the Request for Information (RFI), seeking specific and detailed information on what products are not and cannot be produced in the United States in the near future. Based on information received, FHWA intends to propose time-limited and targeted waivers covering such products, if it determines it would be appropriate to do so. The FHWA believes that issuing targeted waivers for certain manufactured products presents a better model than the current Manufactured Products General Waiver, which does not consider the availability of individually manufactured products and has no set ending in order to incentivize the onshoring of manufacturing.

 

With the RFI, FHWA seeks to mitigate the concerns that rescinding the waiver will cause cost increases and project delays by ensuring the continued availability of necessary manufactured products. The FHWA would intend for such waivers to allow for the use of foreign manufactured products as domestic production ramps-up. Such waivers would be time-limited and could include an explicit schedule for phasing out a waiver over time, creating a glide-path toward full Buy America compliance for products, where possible. The FHWA's goal is that once these waivers expire, the domestic production of any covered product would be sufficient to ensure that Buy America-compliant products would be available for use in FHWA-funded projects. Such waivers could also take into account situations where economic realities, such as the size of the market, the cost of onshoring production, and geographic constraints (such as products made of materials that are not mined in the United States) may hinder domestic manufacturing growth even in the longer term, though such waivers would still be subject to periodic review.

 

Comments for both the NPRM and the RFI are due by May 13, 2024.

 

We will keep you informed if any supplemental information related to these two Notices comes out.

 

Please let us know if you have any questions.

 

Thank you.

 

 

Anthony N. Sarhan, P.E.

FHWA – Arizona Division

Deputy Division Administrator

602-382-8989

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