By Nick Goldstein, vice president of regulatory affairs & assistant general counsel, ARTBA

The Federal Highway Administration (FHWA) Oct. 18 proposed two nationwide revisions to its Buy America policy. This 34-year-old area of contractor compliance law requires that steel or iron components “permanently incorporated” in federal-aid highway projects be manufactured in the United States, subject to possible waivers and exemptions.

The first proposed exemption would apply to “commercially available off-the shelf” (COTS) products with iron or steel components. This waiver would cover items such as “nuts, bolts, washers, and other miscellaneous steel or iron parts.” FHWA’s second proposed waiver would exempt steel tie wire permanently incorporated into precast concrete products. This exemption would be temporary and reevaluated after one year. It is intended to address concerns from the precast concrete industry, which predominantly uses rebar tying guns that utilize non-domestic tie wire.

In December 2012, at the request of ARTBA and several of its chapters, FHWA released a memo exempting “manufactured products” containing less than 90 percent steel or iron, as well as “miscellaneous steel or iron products,” such as screws, bolts, tie wires and other minor items, from Buy America. Subsequently, a coalition of domestic steel interests filed suit in federal court to invalidate the memo, arguing that FHWA needed to make this type of policy change through a formal rulemaking. The court agreed in December 2015 and directed FHWA to rescind its 2012 memo. As a result, its 52 division offices have been interpreting the “manufactured products” and related Buy America provisions independently while the agency considered its options throughout 2016.

Earlier this year, ARTBA organized a letter to FHWA’s leadership signed by nine national associations, urging the agency to undertake a rulemaking as soon as possible in order to end this uncertainty.  In its notice of proposed rulemaking just issued, FHWA acknowledged the letter as an impetus for the proposed revisions and entered it into the docket.

FHWA is seeking comments from all interested parties through Dec. 2. The notice includes 11 specific questions (See page 71788) on which the agency would like input. ARTBA urges all interested chapters and members to review the proposed rule revisions and questions, and submit comments as appropriate. ARTBA also intends to offer comments and will be in contact with our membership to get feedback in coming weeks.

Please contact Rich Juliano or Nick Goldstein with any questions or concerns, including questions on the comment submission process.