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Buy America Requirements for Federal Highway Projects (2020)

Chapter: IV. WAIVERS AND EXCEPTIONS

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Suggested Citation:"IV. WAIVERS AND EXCEPTIONS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Suggested Citation:"IV. WAIVERS AND EXCEPTIONS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Suggested Citation:"IV. WAIVERS AND EXCEPTIONS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Suggested Citation:"IV. WAIVERS AND EXCEPTIONS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Suggested Citation:"IV. WAIVERS AND EXCEPTIONS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Suggested Citation:"IV. WAIVERS AND EXCEPTIONS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Suggested Citation:"IV. WAIVERS AND EXCEPTIONS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Suggested Citation:"IV. WAIVERS AND EXCEPTIONS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Suggested Citation:"IV. WAIVERS AND EXCEPTIONS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Suggested Citation:"IV. WAIVERS AND EXCEPTIONS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Suggested Citation:"IV. WAIVERS AND EXCEPTIONS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Suggested Citation:"IV. WAIVERS AND EXCEPTIONS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Suggested Citation:"IV. WAIVERS AND EXCEPTIONS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Suggested Citation:"IV. WAIVERS AND EXCEPTIONS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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22 NCHRP LRD 80 requests which generated numerous public comments, FHWA did not receive public comments in response to the 2016 vehicle waiver requests.240 In response to the Executive Order issued in April 2017 order ing federal agencies to “minimize the use of waivers” from Buy America requirements,241 FHWA announced in April 2018 that it “is re-evaluating the process and manner in which it de- cides whether to grant waivers for vehicles and vehicle-related equipment.”242 FHWA has not granted vehicle waiver requests received after the date of the April 2017 Executive Order. IV. WAIVERS AND EXCEPTIONS Although the FHWA Buy America provision, as enacted by Congress, nominally requires all steel, iron, and manufactured products used on an FHWA-funded project to be produced in the United States, a number of waivers also authorized by Con- gress allow for foreign content under certain circumstances. Often a given project is not feasible without a waiver, so it is im- portant to understand when the various waivers and exceptions are applicable. This section describes FHWA’s procedure for processing waivers, FHWA’s standards for applying each type of waiver, and examples of specific waivers issued by FHWA. Although there have been a few generally applicable nationwide waivers, such as the Manufactured Products waiver discussed in Section III.A, most waivers are issued on a project-specific basis, allowing a grant recipient (or its contractor) to procure a specific product needed for the project. A. Waiver Procedure 1. Regulatory Procedure at FHWA Division Level FHWA’s Buy America regulations provide that state trans- portation agencies may request waivers for Public Interest or Nonavailability.243 State transportation agencies are not obli- gated to request waivers,244 and have the option to simply re- quire their contractor to furnish domestic materials. FHWA’s Buy America regulations adopted in 1983 provide, “A request for waiver, accompanied by supporting information, must be submitted in writing to the Regional Federal Highway Admin- istrator (RFHWA) through the FHWA Division Administrator. 240 Buy America Waiver Notification, 83 Fed. Reg. 16,421, 16,422, (Apr. 16, 2018); Buy America Waiver Notification, 82 Fed. Reg. 46,882, 46,883 (Oct. 6, 2017). 241 Presidential Executive Order on Buy American and Hire Ameri- can (Apr. 18, 2017), Exec. Order No. 13788, 82 Fed. Reg. 18,837 (Apr. 21, 2017), available at https://www.whitehouse.gov/presidential-actions/ presidential-executive-order-buy-american-hire-american/. 242 Buy America Waiver Notification, 83 Fed. Reg, 16,421, 16,422 (Apr. 16, 2018). 243 23 C.F.R. § 635.410(c)(1) (2018). 244 See, e.g., McKay v. City of Tucson, No. 14-CV-02317 (D. Ariz. Mar. 14, 2017) (rejecting injured cyclist’s argument that Tucson DOT was obligated to request a waiver from the FHWA Buy America provi- sion to purchase an allegedly safer type of rail not produced in the United States), aff’d, 734 Fed. App’x 451 (9th Cir. 2018). grant recipients for specific vehicle purchases were typically compiled into a spreadsheet and published as a bloc waiver re- quest on FHWA’s Buy America waiver website,238 and waivers were issued periodically, each waiver notice typically includ- ing dozens and sometimes hundreds of individual waivers. Al- though most of these vehicle waivers were deemed to be Pub- lic Interest waivers, the final waivers (issued in 2017 and 2018, in response to waiver requests received in 2016) were deemed to be Nonavailability waivers, on the grounds that FHWA did not identify domestic manufacturers that could produce the vehicles and equipment “in such a way that all their steel and iron materials are manufactured domestically.”239 Facilitating this finding was the fact that, unlike the earlier vehicle waiver (Dec. 3, 2015); Buy America Waiver Notification, 80 Fed. Reg. 46,384 (Aug. 4, 2015); Buy America Waiver Notification, 80 Fed. Reg. 30,319 (May 27, 2015); Buy America Waiver Notification, 80 Fed. Reg. 9,502 (Feb. 23, 2015); Buy America Waiver Notification, 79 Fed. Reg. 52,798 (Sept. 4, 2014); Buy America Waiver Notification, 79 Fed. Reg. 44,082 (July 29, 2014); Buy America Waiver Notification, 79 Fed. Reg. 33,633 (June 11, 2014); Buy America Waiver Notification, 78 Fed. Reg. 79,560 (Dec. 30, 2013). 238 See, e.g., FHWA, Buy America Waiver Requests for First Quarter 2017 for Vehicle or Equipment Projects, https://www.fhwa.dot.gov/ construction/contracts/cmaq170725.cfm; FHWA, Buy America Waiver Requests for Fourth Quarter 2016 for Vehicle or Equipment Projects, https://www.fhwa.dot.gov/construction/contracts/cmaq170321.cfm; FHWA, Buy America Waiver Requests for Third Quarter 2016 for Vehi- cle or Equipment Projects, https://www.fhwa.dot.gov/construction/ contracts/cmaq161207.cfm; FHWA, Buy America Waiver Requests for Second Quarter 2016 for Vehicle or Equipment Projects, https://www. fhwa.dot.gov/construction/contracts/cmaq160713.cfm; FHWA, Buy America Waiver Requests for First Quarter 2016 Buy America Waiver Requests for Vehicle or Equipment Projects, https://www.fhwa.dot.gov/ construction/contracts/cmaq160517.cfm; FHWA, Buy America Waiver Requests for Fourth Quarter 2015 Buy America Waiver Requests for Vehicle or Equipment Projects, https://www.fhwa.dot.gov/construc- tion/contracts/cmaq160317.cfm; FHWA, Buy America Waiver Requests for Third Quarter 2015 Buy America Waiver Requests for Vehicle or Equipment Projects, https://www.fhwa.dot.gov/construc- tion/contracts/cmaq160105.cfm; FHWA, Buy America Waiver Requests for Second Quarter 2015 Buy America Waiver Requests for Vehicle or Equipment Projects, https://www.fhwa.dot.gov/construc- tion/contracts/cmaq151006.cfm; FHWA, Buy America Waiver Requests for First Quarter 2015 Buy America Waiver Requests for Vehi- cle or Equipment Projects, https://www.fhwa.dot.gov/construction/ contracts/cmaq150611.cfm; FHWA, Buy America Waiver Requests for 2014 Fourth Quarter Vehicle or Equipment Projects, https://www.fhwa. dot.gov/construction/contracts/cmaq150325.cfm; FHWA, Buy Amer- ica Waiver Requests for Alternative Fuel Vehicle Projects—Third Quarter 2014, https://www.fhwa.dot.gov/construction/contracts/ cmaq141124.cfm; FHWA, Buy America Waiver Requests for Vehicle Projects and Equipment, https://www.fhwa.dot.gov/construction/ contracts/cmaq140722.cfm; FHWA, Buy America Waiver Requests for Alternative Fuel Vehicle Projects, https://www.fhwa.dot.gov/ construction/contracts/cmaq140623.cfm; FHWA, Buy America Waiver Requests for Alternative Fuel Vehicle Projects, https://www.fhwa.dot. gov/construction/contracts/cmaq140211.cfm; FHWA, Buy America Waiver Requests for Alternative Fuel Vehicle Projects, https://www. fhwa.dot.gov/construction/contracts/cmaq131115.cfm. 239 Buy America Waiver Notification, 83 Fed. Reg. 16,421 (Apr. 16, 2018); Buy America Waiver Notification, 82 Fed. Reg. 46,882 (Oct. 6, 2017).

NCHRP LRD 80 23 In 2008, Congress enacted a requirement for FHWA to pro- vide “an informal public notice and comment opportunity”253 to last at least 15 days after publication of any waiver of the FHWA Buy America provision that FHWA intends to grant. In response, in April 2008,254 FHWA established a Buy America waiver website255 on which it provides notice of waiver requests and solicits public comment for 15 days. FHWA is only obli- gated to post waiver requests that it intends to grant, along with FWHA’s justification for doing so. However, in practice, the website states that all waiver requests will be posted there. Typi- cally, FHWA merely posts the waiver request from its grant re- cipient without stating whether it intends to grant the request or offering any specific justification. On the website, the public can subscribe to receive an email notification of each new waiver re- quest posted. The public can post comments responding to each waiver request informally via a form on the website, and posted comments are publicly visible. Shortly after establishing the informal notice-and-comment requirement, Congress enacted an additional requirement for FHWA to publish its finding on any waiver request in the Fed- eral Register, along with “a detailed written justification as to the reasons that such finding is needed.”256 The legislation also required FHWA to solicit additional public comment “for a period of not to exceed 60 days”257 following publication of the finding, although the waiver may be effective as soon as FHWA makes its finding. In practice, FHWA makes the waiver effective the day after its finding is published in the Federal Register, and receives additional public comments on its website for only 15 days after the effective date of the waiver.258 Public comments received in the 15-day period after the finding is published “will be reviewed”259 by FHWA, but the waiver remains effective. The enhanced notice-and-comment requirements effectively revoked FHWA division authority to grant Public Interest and Nonavailability waivers, and required all such waivers to be sub- mitted by FHWA divisions to FHWA national headquarters (via the Office of Program Administration).260 (Price Differential or Minimal Use exceptions continue to be processed at the FHWA 253 Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, Div. K, § 130, 121 Stat. 1844, 1845 (2007); see also Consolidated Appro- priations Act of 2010, Pub. L. No. 111-117, Div. A, § 123, 123 Stat. 3034, 3048 (2009). 254 Buy America Waiver Notification System, 73 Fed. Reg. 19,927 (Apr. 11, 2008). 255 FHWA, Notice of Buy America Waiver Request, http://www. fhwa.dot.gov/construction/contracts/waivers.cfm. 256 SAFETEA-LU Technical Corrections Act of 2008, Pub. L. No. 110-244, § 117(a)(1)(A), 122 Stat. 1572, 1607 (2008). 257 Id. §§ 117(a)(1)(B), 117(b). 258 FHWA, Notice of Buy America Request, https://www.fhwa.dot. gov/construction/contracts/waivers.cfm. 259 Id. 260 Memorandum from Dwight A. Home, FHWA Director of Pro- gram Administration, to FHWA Associate Administrators and FHWA Division Administrators, Re: Revised Policy for the Approval of Buy America Waivers (Mar.  13, 2008), available at https://www.fhwa.dot. gov/construction/contracts/080313.cfm. . . . The RFHWA will have approval authority on the request.”245 Under the 1983 regulatory procedure, the state transportation agency could appeal the regional FHWA decision to FHWA national headquarters.246 FWHA’s response to a waiver request (or appeal) was required to be made available to the public upon request.247 In practice, however, this was not a transparent process because FHWA divisions had broad authority to grant Buy America waivers informally, without generating much docu- mentation for public inspection. Guidance issued by FHWA in 2003 allowed FHWA Division Administrators to approve Buy America waiver requests “with total cost (as delivered to the project) up to $50,000”248 without prior concurrence from FHWA head quarters. Although waiver requests greater than $50,000 required prior concurrence from FHWA headquarters, that typically consisted of “simply a confirmation that the waiver is warranted and reasonable, and [was] handled by phone, fax or e-mail.”249 FHWA collected only basic information for each waiver request, including “the Federal-aid project number/ description, project cost, waiver item, item cost, country of ori- gin for the product, and reason for the waiver.”250 The minimal waiver documentation that was publicly available did not allow for serious scrutiny of waivers that had been granted, and the regulatory procedure provided no realistic opportunity for the public to object to most waivers before they were granted. However, the waiver procedure described in FHWA’s Buy America regulations has been largely superseded by 2008 leg- islation imposing heightened public notice-and-comment re- quirements on FHWA Buy America waivers. 2. Notice-and-Comment Procedure at Nationwide Level FHWA’s Buy America regulations, as adopted in 1983, pro- vide for a written response to any waiver request, which may be obtained by the public upon request.251 However, the regulations did not provide for advance public notice and opportunity to comment on project-specific waiver requests prior to FHWA’s waiver decision. With regard to nationwide waiver requests, the FHWA Buy America regulations provide that any such request “and FHWA’s action on such a request may be published in the Federal Register for public comment.”252 However, FHWA has only published a few nationwide waiver proposals and decisions in the Federal Register for public comment. 245 23 C.F.R. § 635.410(c)(2) (2018). 246 Id. § 635.410(c)(4) (2018). 247 Id. § 635.410(c)(6) (2018). 248 Memorandum from Dwight A. Home, FHWA Director of Pro- gram Administration, to FHWA Division Administrators, Re: Re- Delegation of Buy America Waiver Approval —Guidance (July. 3, 2003) (canceled), available at https://www.fhwa.dot.gov/programadmin/ contracts/070303.cfm. 249 Id. 250 Id. 251 23 C.F.R. § 635.410(c)(6) (2018). 252 Id. (emphasis supplied).

24 NCHRP LRD 80 procure stainless clad steel rebar.268 The notice did not identify the waiver request as a Public Interest waiver, nor did it describe a proposed experimental use. During the 15-day initial public comment period, a number of commenters, assuming this was a Nonavailability waiver request, opposed the waiver on the basis that there was an available supply of solid stainless steel rebar (i.e., rebar composed entirely of stainless steel as opposed to stainless steel cladding) manufactured in the United States.269 After the 15-day comment period, on July 29, 2008, VDOT disclosed on the Buy America waiver website that its intent was to procure both stainless clad steel rebar and solid stainless steel rebar, as well as ASTM 1035 (low-carbon chromium steel) re- bar, on a “preliminary” basis in 2008, “to evaluate cost, delivery problems or field problems before going to full implementa- tion in 2010” when it intended to allow contractors to supply either type of rebar.270 On August 25, 2008, FHWA granted a Public Interest waiver for the stainless clad steel rebar in a notice published in the Federal Register, stating that FHWA “agrees with the Virginia Department of Transportation that it is in the public interest to waive the Buy America requirements for this experimental project.”271 Shortly thereafter, in October 2008, FHWA also granted a waiver to the Rhode Island Department of Transportation (RIDOT) “to evaluate the stainless clad re- inforcing bars under an experimental project,”272 without calling it a Public Interest waiver, and despite the fact that the notice of the RIDOT waiver request did not mention experimental use.273 A few months later, in February 2009, FHWA published notice of a waiver request from DelDOT for stainless clad steel rebar for yet another “experimental project.”274 Again, a num- ber of commenters opposed the request on the basis that there was an available supply of solid stainless rebar manufactured in the United States,275 despite the fact that this appeared to be a Public Interest waiver request for experimental use rather than a Nonavailability waiver request. In April 2009, FHWA granted the Public Interest waiver in a notice published in the Federal Register, stating that it “agrees with DelDOT that it is in the public interest to waive the Buy America requirements for this experimental project.”276 The waiver announcement disclosed 268 FHWA, Notice of Buy America Waiver Request (posted June 22, 2008), available at https://web.archive.org/web/20130606185037/ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=13. 269 Id. 270 Id. 271 Buy America Waiver Notification, 73 Fed. Reg. 50,065 (Aug. 25, 2008). 272 Buy America Waiver Notification, 73 Fed. Reg. 58,295 (Oct. 6, 2008). 273 FHWA, Notice of Buy America Waiver Request (posted Aug. 12, 2008), available at https://web.archive.org/web/20130606184607/ http://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=18. 274 FHWA, Notice of Buy America Waiver Request (posted Feb. 19, 2009), available at https://web.archive.org/web/20130606201155/ http://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=29. 275 Id. 276 Buy America Waiver Notification, 74 Fed. Reg. 16,912, 16,913 (Apr. 13, 2009). division level on a project-by-project basis.) Since 2008, all Pub- lic Interest or Nonavailability waiver requests have been pub- lished on FHWA’s Buy America waiver website,261 and all Public Interest or Nonavailability waiver decisions have been published in the Federal Register. B. Application of Waivers 1. Public Interest FHWA is authorized to grant waivers from the FHWA Buy America provision where its “application would be inconsistent with the public interest.”262 The criteria for granting a Public In- terest waiver are not well defined. In deciding whether to grant a Public Interest waiver, “FHWA will consider all appropriate factors including, but not limited to, cost, administrative bur- den, and delay that would be imposed if the provision were not waived.”263 “An example of public interest would be a finding that applying Buy America would actually reduce rather than create jobs.”264 By far, most individual waivers from the FHWA Buy Amer- ica provision are granted on the basis of Nonavailability; Public Interest waivers are rare.265 However, the Manufactured Prod- ucts waiver was a Public Interest waiver.266 Therefore, more products are probably exempted from the FHWA Buy America provision via the Public Interest waiver (i.e., the Manufactured Products waiver) than any other type of waiver. However, aside from the Manufactured Products waiver, and the related partial Public Interest waivers for vehicles, there have only been a few Public Interest waivers granted by FHWA at the national head- quarters level. a. Experimental Use Prior to 2010, FHWA occasionally granted Public Interest waivers for experimental products.267 The most recent exam- ple of this involved several requests from state transportation agencies in 2008 to 2009 to procure a specialized type of steel reinforcement for concrete known as stainless clad steel rebar, which has a carbon steel core with stainless steel used only as cladding to provide corrosion resistance. In June 2008, shortly after establishing its Buy America waiver website, FHWA pub- lished on the website notice of a waiver request from VDOT to 261 Id.; FHWA, Notice of Buy America Request, https://www.fhwa. dot.gov/construction/contracts/waivers.cfm. 262 23 U.S.C. § 313(b)(1) (2018); see also 23 C.F.R. § 635.410(c)(1)(i) (2018). 263 23 C.F.R. § 635.410(c)(7) (2018). 264 Buy America Requirements, 48 Fed. Reg. 53,099, 53,103 (Nov. 25, 1983). 265 See FHWA, Buy America Waivers Processed, https://www.fhwa. dot.gov/construction/cqit/buywaiver.cfm. 266 Contract Procedures—Buy America Requirements, 48 Fed. Reg. 1,946 (Jan. 17, 1983); see also Contract Procedures—Buy America Requirements, 48 Fed. Reg. 23,631 (May 26, 1983). 267 See FHWA, Buy America Waivers Processed, https://www.fhwa. dot.gov/construction/cqit/buywaiver.cfm.

NCHRP LRD 80 25 Bridge waiver, FHWA did not provide a detailed justification for this waiver. However, as with the Freedom Bridge, a 2013 NHPA MOA recommended mitigating the adverse effect of the deci- sion to replace the Blue River Bridge with a modern highway bridge.283 Further, no comments were received in response to the waiver request notice,284 and the Public Interest waiver was granted without opposition. Both historical bridge Public Inter- est waivers were likely facilitated by the fact that the foreign steel had been procured decades before there was an FHWA Buy America provision, and the waivers were not allowing the pur- chase of new foreign steel, which eliminated opposition from domestic steel manufacturers. The waivers for historical bridge materials and stainless clad steel rebar illustrate how Public Interest waivers are rarely granted and are narrowly focused on special circumstances when they are granted. As with the partial Public Interest waivers for vehicles, the original waivers for historical bridge materials and stainless clad steel rebar resulted in similar waiver requests from other state transportation agencies in similar cir- cumstances. However, rather than granting nationwide Public Interest waivers (e.g., to allow all state transportation agencies to use stainless clad steel rebar, or reuse historical bridge mate- rials, on future projects), FHWA tends to require each grant recipient to undergo the notice-and-comment procedure on a project-specific basis, which helps ensure that each Public Inter- est waiver is truly justified by the circumstances. 2. Nonavailability FHWA is authorized to grant waivers from the FHWA Buy America provision where “such materials and products are not produced in the United States in sufficient and reasonably avail- able quantities and of a satisfactory quality.”285 This Nonavailabil- ity waiver is by far the most widely used by FHWA in response to individual, project-specific waiver requests.286 A number of examples are discussed in Section IV. D. Further, FHWA has is- sued two generally applicable nationwide waivers on the basis of Nonavailability, discussed in Section IV.C. Nonavailability waivers are regularly granted within a couple of months after notice of the waiver request is published on FHWA’s Buy America waiver website, when there are no domes- tic sources identified in the 15-day public comment period. The notices published for public comment often provide minimal detail about the waiver being requested—the notices typically include a short description of the product for which a waiver 283 Julia Larson, Documentation of the Historic Blue River Bridge (Apr.  2016), available at https://web.archive.org/ web/20161230221708/https://library.modot.mo.gov/RDT/reports/ historicbridges/BlueRiverBridge_J0526_Report2.pdf. 284 FHWA, Notice of Buy America Waiver Request (posted Mar. 22, 2016), available at https://web.archive.org/web/20171102024259/ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=120. 285 23 U.S.C. § 313(b)(2) (2018); see also 23 C.F.R. § 635.410(c)(1) (ii) (2018). 286 See FHWA, Buy America Waivers Processed Since 2001, (last update May 3, 2018), https://www.fhwa.dot.gov/construction/cqit/ buywaiver.cfm. that DelDOT intended “to evaluate the stainless clad reinforcing bars, which have not previously been used in the State, along with two other types of corrosion resistant reinforcing steels under an experimental project,”277 information which for the most part had not been previously included in the notice of the waiver request. Since then, FHWA has not granted Public Interest waivers for experimental use. As seen in the stainless clad steel rebar requests, this type of experimental use (comparing the perfor- mance of an experimental foreign product to a domestic prod- uct) is likely to generate public comments opposing the waiver request on the grounds that an acceptable domestic product is available. b. Historical Reuse FHWA has granted a couple of Public Interest waivers in recent years, allowing steel and iron components of histori- cal highway bridges to be reused as greenway bridges to carry pedestrian and bicycle traffic. In September 2013, FHWA granted a Public Interest waiver allowing the Indiana Depart- ment of Transportation (INDOT) to reuse structural steel from the historical Freedom Bridge in the construction of the Monon Trail Bridge over Indiana State Road 25 in Delphi, IN.278 Freedom Bridge had been constructed in the 1890s to support a county road across the White River in Freedom, IN. INDOT had traced approximately 23 percent of its steel to Carnegie Steel, a domestic manufacturer, but could not verify the coun- try of origin of the rest of the steel. A 1991 Memorandum of Agreement (MOA) pursuant to Section 106 of the National Historic Preservation Act (NHPA)279 had recommended that the Freedom Bridge be preserved and relocated. No comments were received in response to the waiver request notice.280 In granting the Public Interest waiver, FHWA reasoned that reuse of the mate rials was consistent with the 1991 NHPA MOA, and also that reuse as a greenway bridge was appropriate because Freedom Bridge “was built in the 1890s, the peak period of the ‘Bicycle Craze’ of the day.” 281 In June 2016, FHWA granted a similar Public Interest waiver allowing the Missouri Department of Transportation (MoDOT) to reuse the original structural steel members of another histori- cal highway bridge in the construction of a bicycle/ pedestrian bridge over the Little Blue River in Grandview, MO.282 The bridge had been constructed in the 1930s (long before there was an FHWA Buy America provision) to support U.S. Highway 40 across the Blue River near Kansas City, MO. Unlike the Freedom 277 Id. 278 Buy America Waiver Notification, 78 Fed. Reg. 55,337 (Sept. 10, 2013). 279 Pub. L. 89-665, 80 Stat. 915 (1966). 280 FHWA, Notice of Buy America Request (posted May 21, 2013), available at https://web.archive.org/web/20170223073415/https://www. fhwa.dot.gov/construction/contracts/waivers.cfm?id=88. 281 Buy America Waiver Notification, 78 Fed. Reg. 55,337 (Sept. 10, 2016). 282 Buy America Waiver Notification, 81 Fed. Reg. 39,097 (June 15, 2016).

26 NCHRP LRD 80 produced in the United States.”291 In response to that Executive Order, a Notice of Proposed Rulemaking is anticipated to es- tablish the applicable regulatory standard for Nonavailability waivers.292 The forthcoming rule “will require the use of items and products with the maximum known amount of domestic content” and “will also establish the required information the applicants must provide in applying for such waivers.”293 The forthcoming rule is intended to ensure consistency in the issu- ance of Nonavailability waivers across USDOT agencies.294 3. Price Differential The FHWA Buy America provision has always included a Price Differential exception, allowing the use of foreign prod- ucts if significant cost savings can be achieved. The version of the FHWA Buy America provision originally enacted by Con- gress in 1978 required that all goods purchased using federal highway grant funds be domestic unless including domestic goods would “increase the cost of the overall project contract by more than 10 per centum.”295 FHWA implemented this Price Differential exception by providing an alternate bid procedure, so that bidders could propose to supply foreign steel, and state transportation agencies could accept the alternate bid if the low- est domestic bid was 10 percent higher than the lowest bid in- cluding foreign steel.296 Application of this 10 percent Price Differential exception was examined in Wampler v. Goldschmidt,297 an early 1980s case involving construction of the Bong Bridge between Duluth, MN and Superior, WI. Eighty percent of the estimated $60 million bridge project was to be funded by FHWA, making the relatively new FHWA Buy America provision applicable. The project was segmented into 14 prime contracts, one of which was for the main span. Two of the bidders for the main span contract sub- mitted alternate bids—one price for domestic steel, and another price for foreign steel. The lowest bid price for the main span contract was $6,825,886.10 using Japanese steel. A competitor, proposing to use only domestic steel, submitted the next lowest 291 Presidential Executive Order on Buy American and Hire Ameri- can (Apr. 18, 2017), Exec. Order No. 13788, 82 Fed. Reg. 18,837 (Apr. 21, 2017), available at https://www.whitehouse.gov/presidential-actions/ presidential-executive-order-buy-american-hire-american/. 292 Introduction to the Unified Agenda of Federal Regulatory and Deregulatory Actions—Fall 2018, 83 Fed. Reg. 57,804, 57,915 (Nov. 16, 2018). 293 Id. 294 Id. 295 Surface Transportation Assistance Act of 1978, Pub. L. No. 95-599, § 401(b)(4), 92 Stat. 2689, 2756 (Nov. 6, 1978). In the case of rolling stock procurements, domestic materials were required unless that “would result in unreasonable cost.” Id. § 401(b)(2). 296 Buy American Requirements, 43 Fed. Reg. 53,717, 53,718 (Nov.  17, 1978). See also Valiant Steel and Equipment, Inc. v. Goldschmidt, 499 F. Supp. 410 (D.D.C. 1980) (noting that FHWA’s reg- ulations at the time only addressed the Price Differential exception and ignored entirely the Public Interest and Nonavailability waivers enacted by Congress). 297 486 F. Supp. 1130 (D. Minn. 1980). is being requested, without detailed product specifications and often with minimal or no information justifying the waiver request. It is common for there to be no public comments re- ceived in the initial 15-day period, a fact that will be noted by FHWA in the subsequent Nonavailability waiver published in the Federal Register. The published waiver decision also typi- cally states, “During the 15-day comment period, the FHWA conducted a nationwide review to locate potential domestic manufacturers.”287 However, unlike other USDOT agencies, FHWA has not entered into an Interagency Agreement with National Institute of Standards and Technology, Manufacturing Extension Partnership (NIST MEP) of the U.S. Department of Commerce to identify domestic sources.288 As a result, as long as there are no comments received opposing the waiver request in the initial 15-day comment period, the search for domestic sources is not extensive and a waiver is typically issued in short order. On the other hand, if comments are received opposing the waiver request in the initial 15-day comment period, there will typically be a months-long delay while FHWA and its grant recipient try to determine whether the commenter has actu- ally identified a viable domestic source for the product. In most cases, the identified manufacturer confirms that it does not manufacture the product for which a waiver is sought, and FHWA will include that information as additional justification for the Nonavailability waiver in the subsequent waiver notice published in the Federal Register.289 In the relatively rare situa- tion where a domestic source is actually identified in the 15-day public comment period, a Nonavailability waiver is not appro- priate and the request will be denied.290 However, the standards for Nonavailability waivers from the FHWA Buy America provision may become stricter in the near future. An Executive Order issued in April 2017 directed federal agencies to “minimize the use of waivers” from Buy America requirements and “to maximize, consistent with law, through terms and conditions of Federal financial assistance awards and Federal procurements, the use of goods, products, and mate rials 287 See, e.g., Buy America Waiver Notification, 73 Fed. Reg. 58,294 (Oct. 6, 2008). 288 See, e.g., Interagency Agreement Between U.S. Department of Transportation, Federal Transit Administration, and U.S. Department of Commerce, National Institute of Standards and Technology (2013), available at https://www.transit.dot.gov/regulations-and-guidance/ asset-management/buy-america/interagency-agreement-between- us-department. 289 See, e.g., Buy America Waiver Notification, 73 Fed. Reg. 68,493 (Nov. 18, 2008) (“The comments suggested that there are companies capable of manufacturing the products domestically. The City of San Diego contacted the companies and verified that Insteel Industries, Inc. does not manufacture stainless steel suspenders.”). 290 See, e.g., Buy America Waiver Notification, 75 Fed. Reg. 37,875 (June 30, 2010) (“The FHWA received four comments which confirmed domestic availability of Manganese castings, LV braces, and Weld kits. .  .  . Thus, the FHWA concludes that a Buy America waiver is .  .  . not appropriate for Manganese turnout castings, LV braces, and Weld kits by 23 CFR 635.410(c)(1).”).

NCHRP LRD 80 27 FHWA.303 However, it is within FHWA’s discretion to approve or reject the state transportation agency’s alternate bid procedures prior to bidding.304 The 1983 strengthening of the Price Differential (from 10 percent to 25 percent), combined with the 2012 expansion of the term project (addressed in Section V.B), makes it very un- likely for the Price Differential exception to be achieved today. For example, in Wampler v. Goldschmidt, supra, the use of for- eign steel resulted in a cost savings of only 13.75 percent on the main span contract. Although this qualified for the Price Differ- ential exception under the 10 percent threshold applicable at the time, it would not have qualified for a waiver under the current 25 percent requirement. Moreover, as the court noted in Wampler, the use of foreign steel in that case resulted in only a 2 percent cost savings on the entire $60 million bridge project: “If it were Congress’ intention to require the court to consider the cost of the entire bridge proj- ect in applying the [Price Differential exception], then, based upon the evidence, it is clear that no foreign steel could ever legally be used in a bridge project constructed pursuant to the Surface Transportation Assistance Act.”305 In 2012 Congress did express its intention that compliance with the FHWA Buy America provision is to be evaluated based on the entire project cost, not just the price of a single contract. This makes it highly unlikely that any purchase of foreign steel or iron would qualify for a Price Differential exception today. 4. Minimal Use The FHWA Buy America regulations permit a minimal amount of foreign steel or iron, where “the cost of such materi- als used does not exceed one-tenth of one percent (0.1 percent) of the total contract cost or $2,500, whichever is greater.”306 The cost of all foreign steel or iron materials, which are not covered by any other waiver or exception, and which are permanently incorporated into the project, must not exceed this threshold in order to satisfy the Minimal Use exception. One issue involved in determining whether the Minimal Use exception is satisfied or exceeded is how to calculate the cost of foreign steel or iron incorporated into the project. FHWA’s Buy 303 Compare 23 C.F.R. § 635.410(b)(3) (2018) (describing the appli- cation of the Price Differential exception) with 23 C.F.R. § 635.410(c)(1) (2018) (“A State may request a waiver of the” FHWA Buy America pro- vision due to Public Interest or Nonavailability.). 304 23 C.F.R. § 635.410(b)(3) (2018) (“Any procedure for obtaining alternate bids based on furnishing foreign steel and iron materials which is acceptable to the Division Administrator may be used.”). 305 Wampler, 486 F. Supp. at 1137 n.8 (1980). 306 23 C.F.R. §  635.410(b)(4) (2018). Note that the Minimal Use exception in the regulation applies to contract price, which seems inconsistent with the 2012 legislation discussed in Section V.B, which requires FHWA Buy America compliance to be evaluated for an entire project. See Southern California Transportation Agencies, Comments, Docket No. FHWA-2013-0041 (Aug. 22, 2013) (recommending that the regulatory language of the Minimal Use exception be amended to allow foreign steel or iron costing up to 0.1 percent of the “total project cost”), available at https://www.regulations.gov/document?D=FHWA-2013- 0041-0031. bid price at $7,764,683.26.298 The Price Differential exception was applied as follows: Price Differential = ($7,764,683.26 – $6,825,886.10) = $938,797.16 Price Differential Percentage = $938,797.16 ÷ $6,825,886.10 = 0.1375 or 13.75% Because the cost savings for the main span contract would be greater than 10 percent using foreign steel, FHWA determined that a Price Differential exception was warranted,299 and the U.S. District Court for the District of Minnesota agreed. The com- petitors who proposed to use only domestic steel argued that the Price Differential exception was not appropriate because the $938,797.16 price differential on the main span contract was much less than 10 percent of the estimated $60 million cost of the entire project. However, the court agreed with FHWA that “the only reasonable interpretation” of the FHWA Buy America provision “requires that the ten percent (10%) formula be ap- plied to the contract specifically dealing with the structural steel used in the main span. The ten percent (10%) figure cannot be compared with the cost of the entire bridge project.”300 Congress expressly repealed the 10 percent Price Differential threshold with its 1983 revision of the FHWA Buy America pro- vision, which requires only domestic goods unless “inclusion of domestic material will increase the cost of the overall project contract by more than 25 percent.”301 This 25 percent Price Dif- ferential exception is implemented by allowing state transporta- tion agencies, to include alternate bid provisions for foreign and domestic steel and iron materials which . . . (i) require all bidders to submit a bid based on furnishing domestic steel and iron materials, and (ii) clearly state that the contract will be awarded to the bidder who submits the low- est total bid based on furnishing domestic steel and iron materials unless such total bid exceeds the lowest total bid based on furnishing foreign steel and iron materials by more than 25 percent.302 Unlike the Public Interest and Nonavailability waivers, which FHWA has discretion to grant or deny, a bid that includes for- eign steel or iron is exempt from the domestic content require- ments of the FHWA Buy America provision if it satisfies the 25 percent Price Differential, and no waiver need be sought from 298 Id. at 1132-33. 299 Id. at 1137 (“In this regard, the District Administrator of the Federal Highway Administration responsible for the Arrowhead Bridge Project determined that using Japanese steel in the main span segment would realize over a 13 percent savings from the lowest bid using domestic steel.”). 300 Id. at 1137 n.8 301 Surface Transportation Assistance Act of 1982, Pub. L. No. 97-424, § 165(b)(4), 96 Stat. 2097, 2137 (Jan. 6, 1983). 302 23 C.F.R. § 635.410(b)(3) (2018); see also Contract Procedures— Buy America Requirements, 48 Fed. Reg. 23,631 (May 26, 1983). A similar 25% price differential applied to bid alternates containing for- eign materials was historically used with the New York Buy America provision. See Luboil Heat & Power Corp. v. Pleydell, 178 Misc. 562, 564, 34 N.Y.S.2d 587, 590 (N.Y. 1942).

28 NCHRP LRD 80 require “modular construction” and the contractor could have constructed the bathrooms using sheet stainless steel “read- ily available in the United States.”315 As a result, the contractor was required to remove the noncompliant toilet/shower mod- ules, and the project was completed 85 days late, resulting in an award to Alaska DOT&PF of $850,000 in liquidated damages,316 which was affirmed by the Supreme Court of Alaska. The Southwest Marine case helps illustrate why it is critical to resolve and clarify whether steel and iron components of manufactured products are subject to the FHWA Buy America provision, or whether they are exempted by the Manufactured Products waiver. For many manufactured products, particularly COTS products, the cost of the steel or iron components can- not be readily determined for purposes of determining whether they satisfy the Minimal Use exception. Under the prevailing interpretation after United Steel, it appears that the cost of steel or iron components of manufactured products (other than pre- dominantly steel or iron products) can now be disregarded, which greatly reduces administrative burden and frees up the Minimal Use threshold to cover other purchases of foreign steel and iron products. On the other hand, for a predominantly steel or iron manufactured product, its cost for purposes of the Minimal Use exception, as in Southwest Marine, is likely the cost of the overall manufactured product as delivered to the jobsite rather than the value of its steel or iron components, which often would result in the Minimal Use threshold being exceeded. In a 2013 Federal Register notice, FHWA requested public comment on whether the Minimal Use exception in the FHWA Buy America regulations is reasonable and appropriate.317 Numerous responses were received. State transportation agen- cies responding to the notice generally requested for the Mini- mal Use threshold to be increased.318 A typical response came from AASHTO, which recommended “updating the threshold to $10,000 or 1% of the total contract cost, whichever is great- er, and indexing for inflation.”319 However, responses from the 315 Id. at 177. 316 Id. at 171, 178. 317 Buy America Policy, 78 Fed. Reg. 41,492 (July 10, 2013). 318 See, e.g., Alaska DOT&PF, Comments, Docket No. FHWA- 2013-0041 (Sept. 12, 2013) (“The minimum use threshold should be 1 percent of project costs or $15,000.”), available at https://www.regula- tions.gov/document?D=FHWA-2013-0041-0078; Caltrans, Com- ments, Docket No. FHWA-2013-0041 (Sept. 9, 2013) (“Caltrans pro- poses that the $2,500 be increased to $10,000 (using a 3.5% annual inflation rate from 1983 through 2023) and the 0.1% be increased to 1%.”), available at https://www.regulations.gov/document?D=FHWA- 2013-0041-0062; IDOT, Comments, Docket No. FHWA-2013-0041 (Sept. 6, 2013) (“Suggest the limits be increased to $15,000 or 1% of the contract and should be reviewed on a three to five year basis and adjusted based on inflation.”), available at https://www.regulations.gov/ document?D=FHWA-2013-0041-0050; VDOT, Comments, Docket No. FHWA-2013-0041 (Aug. 6, 2013) p.4, (“The threshold should be revised to ten (10) percent of the total contract cost or $500,000, or similar values that would address the escalation in cost of materials, and the reality of global manufacturing.”), available at https://www. regulations.gov/document?D=FHWA-2013-0041-0067. 319 AASHTO, Comments, Docket No. FHWA-2013-0041 (Sept. 6, 2013), available at https://www.regulations.gov/document?D=FHWA- America regulations provide that, for purposes of calculating compliance with the Minimal Use exception, “the cost is that shown to be the value of the steel and iron products as they are delivered to the project.”307 With respect to steel or iron compo- nents of manufactured products, FHWA has historically taken the position the cost of foreign steel or iron (for purposed of the Minimal Use exception) includes the value of the foreign steel or iron component plus a pro rata portion of the fabrication/ assembly labor and overhead of the finished product (even if that labor is performed in the United States).308 Note, however, that this may not be consistent with FHWA’s more recent po- sition that the FHWA Buy America provision is waived for steel and iron components of manufactured products that are not predominantly steel or iron, discussed in Section III.B. For foreign manufactured products that are predominantly steel or iron, it is likely that one must consider the entire cost of the product when determining whether it is within the Minimal Use exception. This is illustrated in Southwest Marine, Inc. v. State, Depart- ment of Transportation and Public Facilities, Division of Alaska Marine Highway Systems,309 which involved an FHWA-funded contract to refurbish a ferry boat for the Alaska DOT&PF. In May 1990, shortly after the contract was awarded, the contrac- tor proposed installing toilet/shower modules manufactured, at least in part, using Swedish steel.310 In September 1990, Alaska DOT&PF expressed concerns that the cost of the toilet/shower modules, in combination with several other foreign steel prod- ucts that would potentially be incorporated into the finished project, would exceed the Minimal Use threshold.311 The con- tractor rejected Alaska DOT&PF’s calculation in February 1991, arguing that in determining the cost of steel products, one is not required to include the full cost of “any product which has steel as a component of the end product,”312 but rather the cost of only the steel components of the end product. The contractor took the position that the Minimal Use threshold was not exceeded if the cost is calculated based on “the value of the steel used to make the furnishings that it was installing,”313 rather than the full cost of the toilet/shower modules. Alaska DOT&PF asked FHWA to clarify the application of the Minimal Use exception, and FHWA confirmed “that for purposes of the Buy America Provision, the value of the foreign steel is ‘the total cost of the [toilet/shower modules] as delivered to the job site.’”314 FHWA subsequently denied a Buy America waiver request for the toilet/shower modules, in part because the contract did not 307 23 C.F.R. § 635.410(b)(4) (2018). 308 Memorandum from William A. Weseman, FHWA Chief of Con- struction and Maintenance Division, to FHWA Regional and Division Administrators, Re: Buy America Requirements (July 6, 1989), available at https://www.fhwa.dot.gov/programadmin/contracts/070689.cfm. 309 941 P.2d 166 (Alaska 1997). 310 Id. at 169, 175. 311 Id. at 170, 175-76. 312 Id. at 170. 313 Id. 314 Id. at 171.

NCHRP LRD 80 29 The notice solicited public comments for a short period until August 1993. FHWA received two comments, both in favor of the waiver, and both requesting “that the waiver be expanded to include more items,” including miscellaneous steel and iron components such as bearings, fasteners, and valves.327 FHWA did not agree to expand the waiver as requested, noting that bearings, fasteners, and valves “are available in sufficient quan- tity and satisfactory quality from domestic manufacturers.”328 However, FHWA stated that the waiver, as proposed, would cover such miscellaneous steel or iron products that were com- ponents of the waived equipment (e.g., components of marine diesel engines). In February 1994, FHWA announced in the Federal Register that it had granted the nationwide waiver for the list of ferryboat equipment and machinery.329 In September 1993, FHWA initiated a nationwide review due to allegations that foreign pig iron (the product of smelting iron ore into molded ingots in a blast furnace330) was being used to manufacture steel and iron products used on FHWA-funded projects.331 The results of the nationwide review, communicated in reports from FHWA division offices, confirmed that foreign pig iron, and also “foreign processed, pelletized and reduced iron ore,”332 had been used to manufacture steel and iron prod- ucts used on FHWA-funded projects in some states. “Processed, pelletized, and reduced iron ore are alternatives to pig iron,”333 for use in manufacturing steel and iron construction products. As iron products themselves, the use of foreign pig iron or for- eign processed, pelletized, and reduced iron ore in the domestic manufacturing of steel and iron used on FHWA-funded proj- ects constituted technical violations of the FHWA Buy America provision. In July 1994, FHWA announced that it would pursue a nation wide waiver of the FHWA Buy America provision for these products.334 While the waiver was pending, FHWA al- lowed state transportation agencies to continue to use steel and iron products produced from foreign pig iron or foreign processed, pelletized, and reduced iron ore, “provided all other manufacturing processes have occurred domestically, and pro- 327 General Material Requirements—Buy America Requirements, 59 Fed. Reg. 6,080 (Feb. 9, 1994). 328 Id. at 6,081. 329 Id. at 6,080. 330 General Material Requirements—Buy America Requirements, 60 Fed. Reg. 15,478, 15,479 (Mar. 24, 1995). 331 Memorandum from William A. Weseman, FHWA Director of Engineering, to FHWA Regional Administrators, Re: Buy America Guidance (July 11, 1994), available at https://www.fhwa.dot.gov/ construction/contracts/940711.cfm. 332 Id. 333 General Material Requirements—Buy America Requirements, 59 Fed. Reg. 43,376 (Aug. 23, 1994). 334 Memorandum from William A. Weseman, FHWA Director of Engineering, to FHWA Regional Administrators, Re: Buy America Guidance (July 11, 1994), available at https://www.fhwa.dot.gov/ construction/contracts/940711.cfm. domestic steel manufacturing industry generally opposed in- creasing the Minimal Use threshold, noting that the Minimal Use exception was not authorized by Congress.320 Due in part to the Executive Order issued in April 2017 ordering federal agencies to “minimize the use of waivers” from Buy America requirements,321 FHWA took no action in response to the 2013 notice and comments, and the Minimal Use threshold remains at its 1983 levels of $2,500 or 0.1 percent of the contract value. C. Nationwide FHWA Waivers FHWA has rarely granted nationwide waivers for specific products.322 However, a couple of nationwide Nonavailability waivers were issued in 1994 and 1995, and remain in place today. There was no statutory requirement for public notice and comment for FHWA Buy America waivers prior to 2008. How- ever, FHWA’s Buy America regulations provide, “Any request for a nationwide waiver and FHWA’s action on such a request may be published in the Federal Register for public comment.”323 In June 1993, FHWA published in the Federal Register notice of a proposed nationwide waiver of the FHWA Buy America pro- vision for certain ferryboat equipment and machinery, namely “marine diesel engines, electrical switchboards and switchgear, electric motors, pumps, ventilation fans, boilers, electrical con- trols and electronic equipment”324 used in the construction of ferryboats. No other ferryboat components were proposed to be included in the waiver. In proposing the waiver, FHWA spe- cifically excluded “products which are readily available in the United States such as steel and stainless steel plate and shapes, sheet steel and stainless steel, steel and stainless steel pipe and tubing, and galvanized steel products,”325 which would continue to be subject to the FHWA Buy America provision. FHWA’s jus- tification for the nationwide waiver appeared to combine ele- ments of Nonavailability and Public Interest: The basis for the proposed nationwide waiver is that certain equip- ment and machinery are not manufactured in the United States, using exclusively United States steel and iron, in sufficient and reasonably available quantities to avoid an enormous administrative burden on the State, contractor and suppliers. Therefore, imposing Buy America requirements in this limited instance is not in the public interest.326 2013-0041-0055. 320 See, e.g., Municipal Castings Association, Comments, Docket No. FHWA-2013-0041 (Sept. 6, 2013), available at https://www.regula- tions.gov/document?D=FHWA-2013-0041-0059; Nucor Corporation, Comments, Docket No. FHWA-2013-0041 (Sept. 6, 2013), available at https://www.regulations.gov/document?D=FHWA-2013-0041-0057. 321 Presidential Executive Order on Buy American and Hire Ameri- can (Apr. 18, 2017), Exec. Order No. 13788, 82 Fed. Reg. 18,837 (Apr. 21, 2017), available at https://www.whitehouse.gov/presidential-actions/ presidential-executive-order-buy-american-hire-american/. 322 See Contract Procedures—Buy America Requirements, 53 Fed. Reg. 7,462 (Mar. 8, 1988) (denying nationwide waiver request for steel gabion baskets known as “Reno Mattresses”). 323 23 C.F.R. § 635.410(c)(6) (2018) (emphasis supplied). 324 General Material Requirements—Buy America Requirements, 58 Fed. Reg. 33,295, 33,296 (June 16, 1993). 325 Id. 326 Id.

30 NCHRP LRD 80 manufactured green wire rod in the United States, suggesting that a Nonavailability waiver was inappropriate.342 The waiver was never granted.343 Also, FHWA proposed two new nationwide waivers in 2016: one for commercially available off-the-shelf manufactured products that are not predominantly steel or iron but contain steel or iron components or subcomponents, and one for steel or iron products (including tie wire and specialized lifting de- vices) incorporated into precast concrete products.344 There were a number of comments, both supporting and opposing the waivers. Due in part to the 2017 Executive Order order- ing federal agencies to “minimize the use of waivers” from Buy America requirements,345 no action has been taken on these proposed waivers and no action is presently planned. D. Project-Specific FHWA Waivers This section provides an overview of project-specific FHWA Buy America waivers granted since waiver authority was cen- tralized at FHWA national headquarters in 2008. In deciding whether to grant either a Public Interest or Nonavailability waiver, “FHWA will consider all appropriate factors including, but not limited to, cost, administrative burden, and delay that would be imposed if the provision were not waived.”346 However, Public Interest waivers are rare, and almost all project-specific waivers are Nonavailability waivers. Therefore, in practice, the decision to deny or grant a waiver usually depends on whether a domestic source is identified (either in the 15-day public com- ment period, or by FHWA’s independent investigation). This is illustrated in the following examples of FHWA waiver decisions in some of the more common categories of waiver requests. FHWA grant recipients should consider these examples, includ- ing FHWA’s rationale in deciding whether to grant or deny the waivers, when requesting a project-specific waiver. 1. Anchor Rods Steel or iron anchor rods that are permanently incorporated into an FHWA-funded project must be manufactured in the United States in order to comply with the FHWA Buy America provision.347 From 2008 to 2010, FHWA received a number of 342 Wire Rod Producers Coalition, Comments, Docket No.  FHWA200418479 (Oct.  12, 2004), available at https://www. regulations.gov/document?D=FHWA-2004-18479-0008-0001. 343 See Buy America Nationwide Waiver Notification for Commer- cially Available Off-the-Shelf (COTS) Products with Steel or Iron Com- ponents and for Steel Tie Wire Permanently Incorporated in Precast Concrete Products, 81 Fed. Reg. 71,784 (Oct. 18, 2016) (stating that the FHWA Buy America provision applies to “filler metal/green rod for welding operations”). 344 Id. 345 Presidential Executive Order on Buy American and Hire Ameri- can (Apr. 18, 2017), Exec. Order No. 13788, 82 Fed. Reg. 18,837 (Apr. 21, 2017), available at https://www.whitehouse.gov/presidential-actions/ presidential-executive-order-buy-american-hire-american/. 346 23 C.F.R. § 635.410(c)(7) (2018). 347 Buy America Nationwide Waiver Notification for Commercially Available Off-the-Shelf (COTS) Products with Steel or Iron Compo- vided further that this was the State’s practice prior to Septem- ber 1993,”335 when the nationwide review was initiated. In August 1994, FHWA published in the Federal Register notice of a proposed nationwide Nonavailability waiver for for- eign pig iron or foreign processed, pelletized, and reduced iron ore, and provided a two-month period for public comment.336 Ten comments were received, all in support of the waiver.337 The nationwide Nonavailability waiver for foreign pig iron or for- eign processed, pelletized, and reduced iron ore was published in the Federal Register in March 1995, and it remains in effect today. The waiver is critical for many steel and iron products to achieve compliance with the FHWA Buy America provision, as the waiver allows the Buy America certification process to begin at the steel mill where these iron products are introduced—grant recipients do not have to track the origin of these incorporated products to determine whether raw iron ore was transformed into pig iron or processed, pelletized, and reduced iron ore in the United States. In 2013, FHWA requested public comment on the continued need for these nationwide waivers.338 Relatively few responses were received, which might suggest that the waivers are not needed.339 However, revoking these waivers would likely have had a significant impact on FHWA programs. No action has been taken in response to the notice and comments, and the nationwide waivers remain in place. However, FHWA has been hesitant to issue any new nation- wide waivers since 1995. For example, in 2004, FHWA requested comment on a proposed nationwide waiver for “hot drawn mild steel randomly rolled into coils (commonly referred to as green wire/rod) that can be used in the manufacturing of filler metal wire/electrode (filler metal)” for welding operations.340 A number of state transportation agencies responded to this notice, generally in favor of the proposed nationwide waiver.341 However, a response received by the Wire Rod Producers Coali- tion opposing the waiver represented that three of its members 335 Id. 336 General Material Requirements—Buy America Requirements, 59 Fed. Reg. 43,376 (Aug. 23, 1994). 337 General Material Requirements—Buy America Requirements, 60 Fed. Reg. 15,478, 15,479 (Mar. 24, 1995). 338 Buy America Policy, 78 Fed. Reg. 41,492 (July 10, 2013). 339 But see MDOT, Comments, Docket No. FHWA-2013-0041 (Oct. 22, 2013) (“[P]ig iron items are important categories to retain as general waivers. The contracting industry, as well as regional manufac- turers and fabricators, have informed MDOT that if these waivers are rescinded, projects will be delayed, if not completely cancelled . . . .”), available at https://www.regulations.gov/document?D=FHWA-2013- 0041-0083. 340 Nationwide Waiver of Buy America Requirements for Green Wire/Rod, 69 Fed. Reg. 48,556 (Aug. 10, 2004). 341 See, e.g., TxDOT, Comments, Docket No.  FHWA-2004-18479 (Sept.  21, 2004), available at https://www.regulations.gov/document? D=FHWA-2004-18479-0007; PennDOT, Comments, Docket No. FHWA-2004-18479 (Aug.  31, 2004), available at https://www. regulations.gov/document?D=FHWA-2004-18479-0005; FDOT, Com- ments, Docket No.  FHWA-2004-18479 (Aug.  24, 2004), available at https://www.regulations.gov/document?D=FHWA-2004-18479-0004.

NCHRP LRD 80 31 2. Steel Cable Nets In 2015, FHWA issued a couple of waivers for steel cable nets used as traffic barriers. First, in April 2015, FHWA published, on its Buy America waiver website, notice of a waiver request from the Nevada Department of Transportation (NDOT) for a “drag- net impact absorption system.”356 The notice did not provide ad- ditional detail or specifications about the product for which a waiver was requested, and there were no public comments in response to the waiver request. The following month, FHWA issued a Nonavailability waiver to NDOT “for the use of non- domestic steel cable nets for truck escape ramps,”357 language that was not contained in the original waiver request notice. A few months later, in September 2015, FHWA published a notice of a waiver request from the California Department of Transportation (Caltrans) for the fabrication of cable mesh for an “oxidized stainless steel cable net safety fence.”358 Again, there were no public comments in response to the waiver request, and the following month, FHWA issued a Nonavailability waiver for the mesh.359 In the Federal Register notice, as additional justifi- cation for the waiver, FHWA explained that although the “stain- less steel product for the cable mesh is produced domestically,” there was “no domestic manufacturer capable of fabricating the stainless steel products into safety cable mesh.”360 3. Rail Materials Recent years have seen requests for Buy America waivers for rail projects, including both rail construction and the purchase of locomotives, as FHWA grant funds may be used for such pur- poses under the CMAQ program.361 Further, under the MAP-21 amendment discussed in Section V.B, railroad relocation work in conjunction with an FHWA-funded project must conform to the FHWA Buy America provision, even if FHWA funds are not used for the railroad work. In 2008 and 2009, FHWA received waiver requests from IDOT for specialty railroad track products including guard rails, manganese castings, turnout braces, and weld kits.362 The waiver requests were significant, with the cost of the requested 356 FHWA, Notice of Buy America Waiver Request (Apr. 6, 2015), available at https://web.archive.org/web/20170223080050/https://www. fhwa.dot.gov/construction/contracts/waivers.cfm?id=107. 357 Buy America Waiver Notification, 80 Fed. Reg. 28,342 (May 18, 2015); Buy America Waiver Notification, 80 Fed. Reg. 28,341 (May 18, 2015). 358 FHWA, Notice of Buy America Waiver Request (posted Sept. 4, 2015), available at https://web.archive.org/web/20180429152537/ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=113. 359 Buy America Waiver Notification, 80 Fed. Reg. 64,490 (Oct. 23, 2015). 360 Id. 361 Buy America Policy, 78 Fed. Reg. 41,492, 41,494 (July 10, 2013). 362 See, e.g., FHWA, Request (posted May 20, 2009), available at http://web.archive.org/web/20130606174129/http://www.fhwa.dot. gov/construction/contracts/waivers.cfm?id=33; FHWA, Request (posted June 5, 2008), available at http://web.archive.org/ web/20130606200547/http://www.fhwa.dot.gov/construction/ contracts/waivers.cfm?id=12 . Buy America waiver requests from the Oregon Department of Transportation for one-inch diameter hollow core threaded anchor rods, on which some manufacturing processes had been performed outside the United States, for use on specific highway projects.348 Each individual waiver request was relatively mod- est, with the cost of the foreign product ranging from $11,000 to $16,000 in each request.349 There were no public comments in response to the first few waiver request notices published on FHWA’s Buy America waiver website, allowing FHWA to issue Nonavailability waivers for the anchor rods in 2008 and 2009 without opposition and with relatively quick turnarounds (roughly ten weeks from the date of publication of each waiver request notice).350 However, a waiver request in January 2010 generated four public comments, including suggestions of possible domes- tic sources.351 The department’s program manager responded in February 2010, stating that the suggested domestic sources had been contacted and that none of them manufactured the product.352 FHWA also independently contacted the identified domestic sources “who confirmed that they do not make the product.”353 FHWA finally issued the Nonavailability waiver in July 2010, six months after publication of the notice of waiver request.354 The relative delay in issuing the 2010 waiver indi- cates that FHWA treats seriously public comments received in response to notices of waiver requests, and the public comments also impact state transportation agency procurement activities. In response to the 2010 public comments, the program man- ager stated that it was “pursuing several manufacturers to see if they can produce this for future projects. There are three other projects in our program that need these rods.”355 Since the 2010 waiver was granted, the department has not requested addi- tional waivers to use foreign anchor rods on other projects. nents and for Steel Tie Wire Permanently Incorporated in Precast Con- crete Products, 81 Fed. Reg. 71,784, 71,786 (Oct. 18, 2016). 348 See, e.g., FHWA, Notice of Buy America Request (Nov. 6, 2008), available at https://web.archive.org/web/20130606184137/http:// www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=23; FHWA, Notice of Buy America Request (posted July  31, 2008), available at https://web.archive.org/web/20130606181755/http://www.fhwa.dot. gov/construction/contracts/waivers.cfm?id=17. 349 FHWA, Buy America Waivers Processed, https://www.fhwa.dot. gov/construction/cqit/buywaiver.cfm. 350 See, e.g., Buy America Waiver Notification, 73 Fed. Reg. 58,294 (Oct. 7, 2008); Buy America Waiver Notification, 74 Fed. Reg. 2,152 (Jan. 14, 2009). 351 FHWA, Notice of Buy America Waiver Request (posted Jan. 22, 2010), available at https://web.archive.org/web/20130606174203/ http://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=43. 352 Id. 353 Buy America Waiver Notification, 75 Fed. Reg. 37,876 (June 30, 2010). 354 Id. 355 FHWA, Notice of Buy America Waiver Request (posted Jan. 22, 2010), available at https://web.archive.org/web/20130606174203/ http://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=43.

32 NCHRP LRD 80 factor favoring a Nonavailability waiver. Where there are no public comments, FHWA’s investigation can be abbreviated, and FHWA can issue the Nonavailability waiver in short order, an- nouncing that there was no public opposition. In April 2016, FHWA published a notice of a Buy America waiver request from the City of Chicago for rail products re- lated to modernization of the Airport Transit System (ATS) at O’Hare Airport.371 The project was eligible for FHWA funding under the CMAQ program, making the FHWA Buy America provision applicable.372 The products for which waivers were requested included guideway switches (including manganese castings), running rail, and ATS vehicles. In requesting the waiver, Chicago referenced the waivers for manganese castings granted to IDOT in 2008, 2009, and 2015, and stated, “The City agrees with the FHWA that manganese switch castings are gen- erally not available in the U.S. and thus must be procured using foreign steel and/or iron.”373 Nortrak responded within the 15- day public comment period, representing that it was capable of domestically manufacturing the proposed guideway switches, including manganese castings, “in full compliance with appli- cable Buy America regulations.”374 The Chicago Department of Aviation issued a lengthy response in late June 2016, essentially concluding that the required guideway switches were propri- etary to Vossloh, to ensure compatibility with the Vossloh ATS vehicles (for which Chicago was also requesting a waiver).375 As is typical where there are public comments in response to a notice of waiver request, FHWA’s final decision was not pub- lished in the Federal Register for more than seven months after the publication of the notice of waiver request.376 In December 2016, without specifically addressing Chicago’s statement re- garding the need for Vossloh proprietary technology, FHWA stated that Chicago’s response evidenced coordination with Nortrak “regarding compatibility issues and provided a reason- able explanation of why a waiver is appropriate considering their project circumstances.”377 Based on that explanation, FHWA issued the requested Nonavailability waiver, concluding that there were no “domestic manufacturers of ATS vehicles, ATS guideway switches, and ATS rails for the Chicago O’Hare Inter- national Airport ATS Expansion & Modernization Project.”378 371 FHWA, Notice of Buy America Request (posted Apr. 26, 2016), available at http://web.archive.org/web/20171204095211/https://www. fhwa.dot.gov/construction/contracts/waivers.cfm?id=125. 372 Letter from Jonathan Leach, Chicago Department of Aviation Chief Operating Officer, to Catherine A. Batey, FHWA Illinois Division Administrator (Apr.  6, 2016), available at http://web.archive.org/ web/20170219081534/https://www.fhwa.dot.gov/construction/ contracts/125.pdf. 373 Id. at p.6. 374 FHWA, Notice of Buy America Request (posted Apr. 26, 2016), available at http://web.archive.org/web/20171204095211/https://www. fhwa.dot.gov/construction/contracts/waivers.cfm?id=125. 375 Id. 376 Buy America Waiver Notification, 81 Fed. Reg. 87,124 (Dec. 2, 2016). 377 Id. 378 Id. foreign product ranging from $206,000 in 2008 to $699,645 in 2009.363 There were no public comments in response to the notices of waiver request published on FHWA’s Buy America waiver website. FHWA issued the Nonavailability waivers with- out opposition and with relatively quick turnarounds (roughly seven weeks from the date of publication of each waiver request notice), allowing IDOT to purchase the foreign rail products in 2008 and 2009.364 However, shortly thereafter, in November 2009, FHWA pub- lished a similar notice of a Buy America waiver request from the Oregon Department of Transportation to purchase guard rails, manganese castings, turnout braces, and weld kits.365 This time, FHWA received a number of comments suggesting that the turnout braces and manganese castings were manufactured domestically by Nortrak, but confirming that guard rails were not rolled in the United States.366 Although FHWA granted a Nonavailability waiver for the guard rail only, it concluded that Nonavailability waivers were “not appropriate for Manganese turnout castings, LV braces, and Weld kits”367 (despite previously granting Nonavailability waivers to IDOT for those products). A few years later, in December 2014, IDOT again requested a Buy America waiver for guard rails, manganese castings, turn- out braces, and weld kits.368 This time, there were no public comments in response to the notice of waiver request, allowing FHWA to issue a Nonavailability waiver without opposition two months later.369 In granting the Nonavailability waiver in Feb- ruary 2015, FHWA stated that it “conducted additional nation- wide review to locate potential domestic manufacturers of U-69 guard bars, manganese casting, turnout braces, and weld kits” during the 15-day public comment period, and concluded “that there are no domestic manufacturers of the U-69 guard bars, manganese casting, turnout braces, and weld kits.”370 No men- tion was made of FHWA’s June 2010 determination that there was a domestic source (i.e., Nortrak) for the manganese cast- ings, turnout braces, and weld kits, or whether the domestic supply market had changed since that time. It certainly appears that no public comments received in the 15-day period after publication of the waiver request notice is the most important 363 FHWA, Buy America Waivers Processed, https://www.fhwa.dot. gov/construction/cqit/buywaiver.cfm. 364 See, e.g., Buy America Waiver Notification, 74 Fed. Reg. 32,219 (July 7, 2009); Buy America Waiver Notification, 73 Fed. Reg. 42,894 (July 23, 2008). 365 FHWA, Request (posted Nov. 13, 2009), (seeking comments on Oregon’s Buy America waiver request for railroad turnout components) available at http://web.archive.org/web/20130606190500/http://www. fhwa.dot.gov/construction/contracts/waivers.cfm?id=41. 366 Buy America Waiver Notification, 75 Fed. Reg. 37,875 (June 30, 2010). 367 Id. 368 FHWA, Notice of Buy America Waiver Request (posted Dec. 9, 2014), available at http://web.archive.org/web/20170223080030/ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=103. 369 Buy America Waiver Notification, 80 Fed. Reg. 8,130 (Feb. 13, 2015). 370 Id.

NCHRP LRD 80 33 concrete poles, the long delay was likely due to the prospective, generally applicable nature of the Guam waivers. 5. Ferry Equipment As discussed in Section IV.C, there is a longstanding nation- wide waiver for certain ferry boat equipment and machinery, but not for ferryboat equipment and machinery that is not specifically identified in the nationwide waiver. In 2015 and 2016, FHWA published notices of waiver requests from VDOT to allow it to purchase propulsion units (including propellers, shafts, and gears) compatible with a specific marine diesel engine acquired for Jamestown, VA ferry vessels.385 A similar waiver request from Alaska DOT&PF was published in Decem- ber 2015.386 In each case, the cost of the propulsion equipment for which a waiver was requested was approximately $2 mil- lion.387 Under the nationwide waiver for ferryboat equipment and machinery, the FHWA Buy America provision is waived for the marine diesel engine, but not for the propulsion units. There were no public comments in response to any of the notices, allow ing waivers to be issued without opposition in short order, approximately two months from the date of the notice of each waiver request.388 6. Machinery Brakes In 2016, FHWA published three separate notices of waiver requests, from three different state transportation agencies, for machinery brakes for use in the rehabilitation of moveable bridg- es over waterways. The first waiver request, from the Florida Department of Transportation (FDOT) in December 2015, documented an “extensive effort. . . to locate qualified domesti- cally made brake products,” and identified six domestic manu- facturers who were contacted.389 FHWA granted the waiver ap- proximately four months later, in early May 2016.390 The waiver request was followed in short order by similar waiver requests 385 FHWA, Notice of Buy America Waiver Request (posted Apr. 21, 2016), available at https://web.archive.org/web/20171102030957/ https://www.fhwa.dot.gov/construction/contracts/waivers. cfm?id=124; FHWA, Notice of Buy America Waiver Request (posted Aug. 18, 2015), available at https://web.archive.org/web/ 20180429141350/https://www.fhwa.dot.gov/construction/contracts/ waivers.cfm?id=112. 386 FHWA, Notice of Buy America Waiver Request (posted Dec. 8, 2015), available at https://web.archive.org/web/20170223081441/ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=116. 387 FHWA, Buy America Waivers Processed, https://www.fhwa.dot. gov/construction/cqit/buywaiver.cfm. 388 Buy America Waiver Notification, 81 Fed. Reg. 39,747 (June 17, 2016); Buy America Waiver Notification, 81 Fed. Reg. 7,187 (Feb. 10, 2016). 389 Letter from Thomas A. Andres, FDOT Assistant State Structures Design Engineer, to Rafiq Darji, FHWA Florida Division Construction & Materials Engineer (Dec. 22, 2015), available at https://web.archive. org/web/20170225073257/https://www.fhwa.dot.gov/construction/ contracts/118.pdf. 390 Buy America Waiver Notification, 81 Fed. Reg. 26,305 (May 2, 2016). 4. Reinforced Concrete Poles Although reinforcing steel is available domestically, a num- ber of specialty reinforced concrete products rely either on for- eign steel or foreign manufacturing processes. In March 2012, FHWA published, on its Buy America waiver website, notice of a waiver request from the Guam Transportation Program (GTP) for 45-ft. and 55-ft. pre-stressed spun concrete transmission and distribution power poles.379 “Spun” poles are spun centrifugally within a mold during manufacturing, resulting in round, re- inforced concrete poles with a hollow center and lighter weight than typical reinforced concrete elements that might be manu- factured on a construction site. Reinforcing steel within the con- crete is in tension while the concrete cures, resulting in a final concrete product that is in compression and thus somewhat resistant to cracking. Only one public comment was received in the 15-day notice period, supporting the waiver request on the grounds that the use of non-domestic pre-stressed spun concrete poles would reduce construction costs.380 While this rationale might justify a Price Differential waiver rather than a Nonavailability waiver, it is practically impossible to satisfy the current 25 percent threshold for a Price Differential waiver under the FHWA Buy America provision. FHWA ultimately is- sued a Nonavailability waiver in April 2012, approximately sev- en weeks after publication of the waiver request notice, based on the fact that no domestic sources were identified in the 15-day comment period.381 Around the same time the original waiver was issued, in April 2012, FHWA published notice of a second waiver request by GTP, this time for 35-ft. pre-stressed spun concrete poles (which were not specifically included in the March 2012 waiver request).382 Although there were three public comments in re- sponse to the waiver request, none of them opposed the waiver request.383 FHWA did not respond to this second waiver request for more than ten months after publication of the waiver re- quest notice on the FHWA Buy America waiver website. How- ever, in the Nonavailability waiver notice eventually published in the Federal Register in February 2013, FHWA took the un- usual step of issuing a “general standing waiver” for all 35-ft., 45-ft., and 55-ft. pre-stressed spun concrete transmission and distribution power poles, applicable throughout the Territory of Guam.384 Although there is typically much quicker turnaround when waiver requests are unopposed, such waivers are usually issued only for a specific project. In the case of pre-stressed spun 379 FHWA, Notice of Buy America Waiver Request (posted Mar. 5, 2012), available at https://web.archive.org/web/20170223073326/ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=66. 380 Id. 381 Buy America Waiver Notification, 77 Fed. Reg. 24,760 (Apr. 25, 2012). 382 FHWA, Notice of Buy America Waiver Request (posted Apr. 4, 2012), available at https://web.archive.org/web/20170223073343/ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=72. 383 Id. 384 Buy America Waiver Notification, 78 Fed. Reg. 9,989 (Feb. 12, 2013).

34 NCHRP LRD 80 150 cast steel gate valve.”398 ODOT coordinated with the domes- tic sources identified by NIST MEP, and “found that these enti- ties could not supply the specified product.”399 FHWA ultimate- ly granted the waiver in September 2013,400 approximately six months after ODOT’s waiver request—a delay likely influenced by NIST MEP’s involvement with this waiver request and also by the controversy over the Caltrans waiver request in July 2013. Since then, waiver requests for utility line valves have been significantly more streamlined. Targeted requests for a limited number of specifically identified valves and related products in 2014 and 2015 resulted in waivers being issued within two months after publication of the notice, with no comments or other opposition from the general public, the domestic manu- facturing industry, or NIST MEP.401 8. Submersible Pumps In May 2012, FHWA published two separate notices of waiver requests by MDOT and IDOT for submersible pumps.402 Both requests generated a number of public comments gener- ally from individuals opposed to the requests on the principle that domestic manufacturers should be preferred. One of the commenters on the MDOT waiver request was a domestic pump supplier. MDOT reported that it subsequently furnished the pump specifications to the domestic supplier, which deter- mined that it was unable to satisfy the specifications and the FHWA Buy America provision.403 None of the commenters on the IDOT request identified a potential domestic source.404 However, as is typical where there are public comments in response to a notice of waiver request, FHWA’s final decisions 398 Buy America Waiver Notification, 78 Fed. Reg. 55,337, 55,338 (Sept. 10, 2013). 399 Id. 400 Id. 401 Buy America Waiver Notification, 80 Fed. Reg. 64,477 (Oct. 23, 2015) (granting waiver to WSDOT for stainless steel grooved butterfly valves, as well as couplings and conduit); Buy America Waiver Notifica- tion, 80 Fed. Reg. 62,152 (Oct. 15, 2015) (granting waiver to CDOT for six waterline valves); Buy America Waiver Notification, 80 Fed. Reg. 8,130 (Feb. 13, 2015) (granting waiver to New York State Department of Transportation (NYSDOT) for trunnion mounted steel ball valves); Buy America Waiver Notification, 79 Fed. Reg. 71,503 (Dec. 2, 2014) (granting waiver to NYSDOT for trunnion mounted steel ball valves). 402 FHWA, Notice of Buy America Waiver Request (posted May 16, 2012), available at http://web.archive.org/web/20170223073345/http:// www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=75; FHWA, Notice of Buy America Waiver Request (posted May 3, 2012), available at http://web.archive.org/web/20130606202358/http://www.fhwa.dot. gov/construction/contracts/waivers.cfm?id=74. 403 Buy America Waiver Notification, 77 Fed. Reg. 72,432 (posted Dec. 5, 2012); see also FHWA, Notice of Buy America Waiver Request (May 16, 2012), available at http://web.archive.org/web/ 20170223073345/http://www.fhwa.dot.gov/construction/ contracts/ waivers.cfm?id=75. 404 Buy America Waiver Notification, 77 Fed. Reg. 72,433 (posted Dec. 5, 2012); see also FHWA, Notice of Buy America Waiver Request (web posting date May 3, 2012), available at http://web.archive.org/ web/20130606202358/http://www.fhwa.dot.gov/construction/ contracts/waivers.cfm?id=74. from the Ohio Department of Transportation (ODOT)391 and the Texas Department of Transportation (TxDOT).392 The latter waivers were issued approximately two months after publication of the notice of the waiver request.393 In each case, there were no public comments in response to the notices, and the waivers were issued without opposition. 7. Utility Line Valves The FHWA Buy America provision requires steel or iron in valves to be manufactured in the United States, unless a waiver is granted.394 The FHWA Buy America provision applies to all contracts in a project where at least one contract is funded in part by FHWA. In December 2012, FHWA determined that utility relocation work on FHWA-funded projects is subject to the FHWA Buy America provision, even if the utility work is not reimbursed with FHWA funds.395 This has resulted in an in- crease in requests for waivers for products such as valves. On July 3, 2013, FHWA published a notice of a waiver request by Caltrans for approximately 167 items, including valves and re- lated products, for relocation of a natural gas line.396 This request generated numerous public comments, including many from individuals opposed to the requests, as well as responses from other state transportation agencies supporting the Caltrans waiver request. However, Caltrans withdrew the waiver request on July 23, 2013, just 20 days after the notice was published, in light of the widespread public interest generated by the request. At the time of the Caltrans waiver request in July 2013, a much more narrow waiver request was pending to allow ODOT to purchase five 14-inch steel gate valves.397 No public com- ments were received in response to the ODOT waiver request, but NIST MEP “identified some domestic suppliers capable of casting part of the steel gate valve but not the complete 14˝ class 391 FHWA, Notice of Buy America Waiver Request (posted Mar. 22, 2016) (requesting waiver for ODOT for Port Clinton bascule bridge), available at https://web.archive.org/web/20160809064242/https://www. fhwa.dot.gov/construction/contracts/waivers.cfm?id=121. 392 FHWA, Notice of Buy America Waiver Request (posted Sept. 21, 2016) (requesting waiver for TxDOT for Cow Bayou swing bridge), available at https://web.archive.org/web/20171204030123/https://www. fhwa.dot.gov/construction/contracts/waivers.cfm?id=135. 393 Buy America Waiver Notification, 81 Fed. Reg. 83,328 (Nov. 21, 2016) (granting waiver to TxDOT for Cow Bayou swing bridge); Buy America Waiver Notification, 81 Fed. Reg. 30,602 (May 17, 2016) (granting waiver to ODOT for Port Clinton bascule bridge). 394 See, e.g., Buy America Waiver Notification, 74 Fed. Reg. 52,997 (Oct.  15, 2009) (granting waiver to the City of Colorado Springs to acquire butterfly valves). 395 Letter from Victor M. Mendez, FHWA Administrator, to John Horsley, AASHTO Executive Director (Dec. 20, 2012), available at https://www.fhwa.dot.gov/construction/contracts/121220.cfm. 396 FHWA, Notice of Buy America Waiver Request (posted July 3, 2013), https://www.fhwa.dot.gov/construction/contracts/waivers. cfm?id=89. 397 FHWA, Notice of Buy America Waiver Request (posted Mar. 25, 2013), available at https://web.archive.org/web/20170223073408/ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=86.

NCHRP LRD 80 35 comments or other opposition from the general public or the domestic manufacturing industry, and no involvement from NIST MEP. As a result, FHWA issued the waiver in April 2014, just two months after publication of the notice.415 The ava- lanche exploder waivers allowed for significant expenditures of FHWA funds on non-domestic steel products, as the cost of the avalanche exploders for CDOT and UDOT were $450,000 and $544,000, respectively.416 E. National Highway Transportation Safety Administration Waivers The FHWA Buy America provision applies to “funds authorized to be appropriated to carry out” Title 23 of the United States Code “and administered by the Department of Transportation.”417 The National Highway Transportation Safety Administration (NHTSA) was established in 1970 to carry out key portions of the Highway Safety Act of 1966418, which is codified at chapter 4 of Title 23.419 Specifically, NHTSA admin- isters federal grant funds authorized under chapter 4 of Title 23 for state transportation agency highway safety programs.420 In August 2012, the powers delegated to NHTSA were expanded to specifically include enforcement of the Buy America provi- sion “with respect to matters within the primary responsibility of the National Highway Traffic Safety Administrator.”421 There- after, in April 2013, NHTSA updated its regulations422 to reflect that it would enforce the Buy America provision with respect to federal funds administered by NHTSA.423 Because NHTSA, unlike FHWA, had never issued a nation- wide waiver for manufactured products, NHTSA began to re- ceive and process numerous waiver requests from state trans- portation agency highway safety programs for the purchase of manufactured products using NHTSA funds. NHTSA granted several Nonavailability waiver requests for individual purchases of small COTS products related to highway safety, such as infant https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=94. 415 Buy America Waiver Notification, 79 Fed. Reg. 23,401 (Apr. 28, 2014). 416 FHWA, Buy America Waivers Processed, https://www.fhwa.dot. gov/construction/cqit/buywaiver.cfm. 417 23 U.S.C. § 313 (2018). 418 Pub. L. 89-564, 80 Stat. 731. 419 49 C.F.R. §§ 1.95(d),(e) (2018); see also 49 C.F.R. §  1.50(b) (2011). 420 23 U.S.C. §§ 402, 403 (2018). 421 49 C.F.R. §  1.95(f) (2018); Organization and Delegation of Powers and Duties, 77 Fed. Reg. 49,964, 49,986 (Aug. 17, 2012). 422 49 C.F.R. §  501.3(a)(1)(i) (2018) (providing that the NHTSA Administrator represents USDOT and is the principal advisor to the Secretary of Transportation in all matters related to 23 U.S.C. § 313, with respect to matters within the primary responsibility of NHTSA); 49 C.F.R. § 501.8(d)(8) (2018) (providing that the NHTSA Chief Coun- sel is to “[c]arry out the functions and exercise the authority vested in the Secretary for 23 U.S.C. 313 (Buy America), with respect to matters within the primary responsibility of NHTSA”). 423 78 Fed. Reg. 23,158 (Apr. 18, 2013); see also 81 Fed. Reg. 5,937 (Feb. 4, 2016). were not published until approximately seven months after the publication of the notice of waiver requests.405 In December 2012, FHWA granted Nonavailability waivers to MDOT and IDOT for the submersible pumps, concluding “that there are no domestic manufacturers.”406 Supporting its decision to grant both waivers, FHWA announced that NIST MEP had “con- ducted supplier scouting on submersible pumps and reported that there were no domestic matching items for the pumps.”407 In June 2016, FHWA published a similar waiver request from the North Dakota Department of Transportation for sub- mersible pumps.408 This time, there were no public comments or other opposition from the general public or the domestic manufacturing industry, and no involvement from NIST MEP. As a result, FHWA issued the waiver in August 2016, just two months after publication of the notice.409 9. Avalanche Control Systems In March 2012, FHWA published two separate notices of waiver requests from UDOT and WYDOT for, respectively, an avalanche exploder and an avalanche initiating blaster,410 which are explosive devices used for avalanche control, manufactured of steel by French manufacturer Technologie Alpine De Sécurité (TAS). FHWA received two comments on the WYDOT waiver request, which “urged the use of domestic manufacturers, when possible, but did not provide any suggested manufacturers.”411 NIST MEP “conducted supplier scouting on the Avalanche Ini- tiating Blasters and reported that they could not find domestic matching items.”412 FHWA ultimately issued a Nonavailability waiver to both WYDOT and UDOT in October 2012,413 ap- proximately seven months after publication of the waiver re- quest notices on FHWA’s Buy America waiver website, a delay period that is typical when there are public comments opposing a waiver and involvement from NIST MEP. In February 2014, FHWA published a similar waiver request from the Colorado Department of Transportation (CDOT) for a TAS avalanche exploder.414 This time, there were no public 405 Buy America Waiver Notification, 77 Fed. Reg. 72,433 (posted Dec.  5, 2012); Buy America Waiver Notification, 77 Fed. Reg 72,432 (Dec. 5, 2012). 406 See e.g. Buy America Waiver Notification, 77 Fed. Reg 72,432 (Dec. 5, 2012). 407 Id. 408 Buy America Waiver Notification, 81 Fed. Reg. 57,997 (Aug. 24, 2016). 409 Id. 410 FHWA, Notice of Buy America Waiver Request (posted March 6, 2012), available at https://web.archive.org/web/20170223073335/ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=69; FHWA, Notice of Buy America Waiver Request (posted March 22, 2012), available at https://web.archive.org/web/20170223073339/ https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=71. 411 Buy America Waiver Notification, 77 Fed. Reg. 65,928 (Oct. 31, 2012). 412 Id. 413 Id. 414 FHWA, Notice of Buy America Waiver Request (posted Feb. 21, 2014), available at https://web.archive.org/web/20170223073433/

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The Federal Highway Administration's “Buy America Act” requires federally funded highway projects to use only steel, iron, and manufactured products produced in the United States.

The TRB National Cooperative Highway Research Program's NCHRP LRD 80: Buy America Requirements for Federal Highway Projects summarizes the intent and application of the provision. It also summarizes the procedure that FHWA has implemented for granting waivers and the impact that court interpretation of such waivers has had on the industry.

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