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[Federal Register Volume 89, Number 211 (Thursday, October 31, 2024)]
[Notices]
[Pages 86905-86907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-25387]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

Buy America Waiver Notification

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

ACTION: Notice.

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SUMMARY: This notice supersedes a previously published notice on this 
topic. This notice provides information regarding FHWA's finding that 
it is appropriate to grant a non-availability Buy America waiver to the 
Utah Department of Transportation (UDOT) for procurement and 
installation of 16 suspended explosive charge remote avalanche control 
systems (RACS), which contain non-domestic iron and steel components, 
along Mount Superior overlooking SR-210 in Little Cottonwood Canyon, 
Utah. The waiver relates specifically to iron and steel components that 
are part of the tower, deployment box, and charges of the RACS.

DATES: The effective date of the waiver is October 23, 2024.

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) 366-1345, 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

    An electronic copy of this document may be downloaded from the 
Federal Register's home page at: www.FederalRegister.gov and the U.S. 
Government Publishing Office's database at: www.GovInfo.gov.

Background

    The FHWA's Buy America requirements for steel and iron are set 
forth at 23 U.S.C. 313 and 23 CFR 635.410 and require that all steel 
and iron that are permanently incorporated into a Federal-aid project 
must be produced in the United States unless a waiver is granted, 
including predominantly steel and iron components of a manufactured 
product.\1\ Under these requirements, all manufacturing processes, 
including the application of a coating, must occur in the United 
States.\2\
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    \1\ Under 23 U.S.C. 313, FHWA has a Buy America requirement for 
manufactured products; however, FHWA has a standing waiver under 23 
U.S.C. 313(b), known as the Manufactured Products General Waiver, 
which covers manufactured products that are not predominantly steel 
and iron. See 48 FR 53099 (Nov. 25, 1983).
    \2\ While the Build America, Buy America Act (BABA), included in 
the Infrastructure Investment and Jobs Act (also known as the 
``Bipartisan Infrastructure Law'' (BIL)) (Pub. L. 117-58), sets out 
Buy America preferences for steel, iron, manufactured products, and 
construction materials, these preferences only apply to the extent 
that a domestic content procurement preference, as described in 
section 70914 of BABA, does not already apply to iron, steel, 
manufactured products, and construction materials. BIL section 
70917(a)-(b). As FHWA has existing domestic content preferences for 
steel, iron, and manufactured products at 23 U.S.C. 313, the 
requirements under 23 U.S.C. 313 apply to steel, iron, and 
manufactured products instead of the requirements under BABA. As 
FHWA's existing Buy America requirement does not specifically cover 
construction materials, the Buy America preference under section 
70914 of BABA applies for construction materials.
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    Under 23 U.S.C. 313(b)(2) and 23 CFR 635.410(c)(1)(ii), FHWA may 
waive the application of its Buy America requirement for steel and iron 
when products are not produced in the United States in sufficient and 
reasonably available quantities of a satisfactory quality. This notice 
provides information regarding FHWA's finding that it is appropriate to 
grant UDOT a non-availability Buy America waiver for procurement of 16 
suspended explosive charge RACS, which include non-domestic iron and 
steel components, for installation along Mount Superior overlooking SR-
210 in Little Cottonwood Canyon, Utah. For each of the 16 RACS, this 
waiver will cover only: (i) the tower; (ii) the deployment box; and 
(iii) the charges (collectively ``waiver items''). This waiver does not 
apply to the reinforced foundation of the RACS, which consists of 
anchor kits and a base plate; such foundation must be domestically 
sourced and compliant with FHWA's Buy America requirements. This notice 
supersedes the notice previously published on October 22, 2024, at 89 
FR 84435.
    Background on the Project: In 2020, the U.S. Army asked all members 
of the Avalanche Artillery Users of North America Committee 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. The UDOT has committed to ending the use of the 
howitzer by 2025 and replacing it with RACS, which use remotely 
detonated explosives to mitigate avalanches and save lives. This 
project is to install 16 RACS using suspended explosive charges along 
SR-210 in Little Cottonwood Canyon to minimize safety concerns from the 
overhead fire of live artillery over inhabited structures.
    Background on Waiver Request: The UDOT is part of the 
Transportation Avalanche Research Pool, which has identified three main 
types of RACS used in the United States: gas-delivered explosives, 
propelled explosive charges, and suspended explosive charges. The UDOT 
believes that the most appropriate products for this project based on 
the unique terrain in the deployment area are RACS that utilize 
suspended explosive charges. Prior to submitting a waiver request, UDOT 
identified only one domestic supplier of any type of RACS; however, 
that company uses gas-delivered explosives, 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 that would be needed to 
operate the system. The 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.
    The UDOT thus requested a waiver for the tower, deployment box, and 
charges that are part of the RACS for 16 systems that will use 
suspended explosive charges.
    In accordance with section 122 of Division F of the Consolidated 
Appropriations Act, 2024 (Pub. L. 118-42), section 117 of the SAFETEA-
LU Technical Corrections Act of 2008 (Pub. L. 110-244), and 23 U.S.C. 
313(g), FHWA posted a notice of the waiver request on its website on 
April 10, 2024, soliciting public comment on the intent to issue a 
waiver of the waiver items for a 15-day period.\3\
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    \3\ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=175.
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Waiver Justification Summary

    Comments to the Notice of Waiver Request: The FHWA received five 
comments in response to the notice of the waiver request. One commenter 
stated that FHWA's Buy America requirements are outdated and indicated 
that FHWA should grant the waiver.

[[Page 86906]]

Another stated that FHWA should grant the waiver and argued that FHWA 
should not apply its Buy America requirements to predominantly steel 
and iron components.
    Two other commenters provided information not relevant to the 
waiver request. One questioned the environmental impacts of RACS, which 
is not an issue within the scope of this waiver request.
    Another commenter stated that the Office of Management and Budget 
(OMB) policy eliminated the need for the waiver request because OMB 
requirements apply to manufactured products, not just iron and steel. 
The FHWA's Buy America requirements with respect to manufactured 
products, however, differ from requirements applicable to other Federal 
Agencies under BABA, which was included as part of the BIL (Pub. L. 
117-58). The FHWA has waived its statutory Buy America requirements as 
to all manufactured products that are not predominantly steel and iron; 
however, FHWA applies its Buy America requirements to predominantly 
iron and steel components of manufactured products, and such components 
must comply with FHWA's requirements that all iron and steel must be 
domestically manufactured. Although BABA requires that manufactured 
products be manufactured in the United States and the cost of the 
manufactured product's components that are mined, produced, or 
manufactured in the United States must be greater than 55 percent of 
the total cost of all components of the manufactured product, BABA does 
not specifically mandate that iron and steel components in particular 
must be domestically manufactured.\4\ See BIL section 70912(6)(B).
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    \4\ To meet the requirement that 55 percent of components, by 
cost, be mined, produced, or manufactured in the United States for a 
manufactured product containing predominantly iron or steel 
components, a manufacturer may choose to domestically produce those 
components. This is different from FHWA's Buy America requirements, 
which mandate that all predominantly steel or iron components be 
domestically produced, regardless of the percent, by cost, of which 
they make up the manufactured product.
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    In other words, FHWA applies its own Buy America requirements to 
steel, iron, and manufactured products used on FHWA funded projects, 
not the standards for steel, iron, and manufactured products under 
BABA. See BIL section 70917(a)-(b). Accordingly, manufactured products 
used on FHWA funded projects are only compliant with Buy America if all 
of their predominantly steel and iron components are domestically 
manufactured. Manufactured products that meet BABA's standards, being 
manufactured in the United States and having 55 percent of the 
components, by cost, be mined, produced, or manufactured in the United 
States, are not inherently compliant with FHWA's Buy America and may 
not necessarily be permanently incorporated into FHWA-funded projects.
    Finally, the fifth commenter, representing the domestic supplier 
identified by UDOT as using gas-delivered explosives noted above, 
stated that the company was not consulted on the viability of its 
product to work in the project terrain and contested the statement from 
UDOT that its products are not a viable alternative for the project. 
When determining whether steel and iron materials or products are not 
produced in the United States in sufficient and reasonably available 
quantities which are of a satisfactory quality pursuant to 23 U.S.C. 
313(b)(2) and 23 CFR 635.410(c)(1)(ii), FHWA considers whether the 
recipient has used appropriate due diligence to identify domestic 
products or domestically available alternative products that meet the 
recipient's specifications. A comparable product that performs a 
similar function is not necessarily a domestic alternative; the product 
must also meet the recipient's specific requirements that are deemed 
necessary in order to achieve the performance objectives of the 
project. The FHWA's statutory requirements do not require recipients to 
change product specifications in order to utilize domestic products 
that do not meet the recipient's original specifications. Accordingly, 
as FHWA views this fifth commenter as arguing UDOT should modify their 
original specifications to accommodate their domestic product, FHWA 
does not believe that this commenter has demonstrated that they have a 
suitable domestic alternative.
    In sum, no commenter provided information on potential domestic 
manufacturers of suspended explosive charge RACS. Thus, UDOT did not 
receive any new information indicating that the waiver items could be 
produced by domestic manufacturers from any of the commenters.
    The FHWA believes that UDOT has made substantial efforts to find 
suitable Buy America-compliant waiver items that will safely and 
effectively serve the purpose of this project but that such products 
are unavailable.
    Timing and Need for a Waiver: The waiver items are essential to 
achieving the goal of replacing the current use of live artillery with 
a safer remote-activated system that can provide highway avalanche 
mitigation.
    While UDOT did not request a waiver for the reinforced foundation 
of the RACS, as such foundation can be domestically manufactured, the 
waiver items are engineered to work together as a single system, and 
exchanging parts of the system would reduce the reliability and safety 
of the system. Accordingly, the waiver items at issue must be purchased 
and installed as a single system, and UDOT has not located any domestic 
manufacturers for the waiver items meeting the project's 
specifications, nor has any domestic manufacturer identified the 
ability to produce Buy America-compliant waiver items through the 
public comment process.
    Executive Order 14005: Executive Order (E.O.) 14005, entitled 
``Ensuring the Future is Made in All of America by All of America's 
Workers,'' provides that Federal Agencies should, consistent with 
applicable law, maximize the use of goods, products, and materials 
produced in, and services offered in, the United States. 86 FR 7475 
(Jan. 28, 2021). Based on the information contained in the waiver 
request from UDOT and the lack of responsive comments to the notice of 
waiver request, FHWA concludes that issuing a waiver is not 
inconsistent with E.O. 14005.

Finding and Request for Comments

    Based on all the information available to the Agency, FHWA 
concludes that there are no Buy America-compliant waiver items meeting 
the project's specifications and is waiving its Buy America 
requirements for steel and iron set forth at 23 U.S.C. 313 and 23 CFR 
635.410 for recipient purchases of 16 RACS using suspended explosive 
charges for avalanche highway mitigation in Little Cottonwood Canyon. 
For each RACS, this waiver will cover only: (i) the tower; (ii) the 
deployment box; and (iii) the charges (collectively ``waiver items''). 
This waiver does not apply to other components of the RACS, such as 
reinforced foundations, which must be compliant with FHWA's Buy America 
requirements. In addition, this waiver does not cover additional 
charges purchased for the RACS.
    The waiver is limited to applicable purchases by UDOT, UDOT's 
contractors, or subcontractors (of whatever tier) of the waiver items 
for the above mentioned project. The waiver does not apply to purchases 
for any other products or projects. This waiver would be effective from 
the effective date of the final waiver through the period of 
performance and closeout

[[Page 86907]]

of FHWA's financial assistance for the project, which is estimated to 
be December 31, 2025.
    The UDOT and its contractors and subcontractors involved in the 
procurement of the relevant components are reminded of the need to 
comply with the Cargo Preference Act in 46 CFR part 38, if applicable.
    In accordance with the provisions of section 117 of the SAFETEA-LU 
Technical Corrections Act of 2008, FHWA is providing this notice as its 
finding that a waiver of its Buy America requirements for steel and 
iron is appropriate. The FHWA invites public comment on this finding 
for an additional five days following the effective date of the 
finding. Comments may be submitted to FHWA's website via the link 
provided to the waiver page noted above.
    Authority: 23 U.S.C. 313; Pub. L. 110-161; 23 CFR 635.410.

Kristin R. White,
Acting Administrator, Federal Highway Administration.
[FR Doc. 2024-25387 Filed 10-30-24; 8:45 am]
BILLING CODE 4910-22-P
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