By Nick Goldstein, vice president of regulatory affairs & assistant general counsel, ARTBA
ARTBA supports two proposed revisions to the Federal Highway Administration’s (FHWA) Buy America rule. The 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.
FHWA’s 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.”
The agency’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, though ARTBA is urging FHWA to make the exemption permanent. It is intended to address concerns from the precast concrete industry, which predominantly uses rebar tying guns that utilize non-domestic tie wire.
As with changing most federal regulations, there’s a long history here. 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.
Since then, FHWA’s 52 division offices have interpreted the “manufactured products” and related Buy America provisions independently. The FHWA’s proposed revisions are an attempt “to achieve greater nationwide uniformity in the application of its Buy America Requirements.”
ARTBA also wishes to thank our state chapter affiliates for providing input on this important issue. Read ARTBA’s Dec. 2 comments.