By Rich Juliano, senior vice president for policy, ARTBA
President Donald Trump Jan. 31 signed an executive order (EO) promoting – and potentially requiring – expanded use of American-made materials (including steel, iron and cement) on federally-financed infrastructure projects. The directive follows an April 2017 order and numerous public statements on this topic.
Federal policy on preference for domestic construction materials originates in two similar-sounding but distinct statutes. The Buy America law, which dates to 1982, is more familiar to ARTBA members. It requires that steel or iron components “permanently incorporated” in federal-aid highway and transit projects be manufactured in the United States, subject to certain possible waivers and exemptions. The Buy American (with an “n”) law dates to 1933 and primarily applies to direct federal procurements.
The new EO does not distinguish between the two, but does note that it will not apply to “programs providing federal financial assistance that are subject to comparable domestic preferences.” This could be a reference to existing Buy America (no “n”) requirements and thus minimize the EO’s effect on federal-aid transportation projects. However, this is subject to the interpretation of the White House, U.S. Department of Transportation, and other federal agencies.
In comments at the White House signing ceremony for the EO, President Trump did single out transportation projects as being among the targets for the order. “We want American roads, bridges and railways and everything else to be built with American iron, American steel, American concrete and American hands,” he said, according to the Associated Press.
For those programs it does apply to, the new EO gives agencies 90 days to begin “encourag[ing]” recipients of new federal financial assistance “to use, to the greatest extent practicable, iron and aluminum as well as steel, cement, and other manufactured products produced in the United States in every contract, subcontract, purchase order, or sub‑award.” Within 120 days, each affected agency is to submit a report to President Trump and his assistant for trade policy, Peter Navarro, identifying “any tools, techniques, terms, or conditions” that can further the EO’s objectives, and analyzing any potential ways to require use of domestic steel, cement and other manufactured products where it is not done now.
ARTBA will stay in close communication with the Federal Highway Administration and other agencies as they interpret and carry out tasks relating to the EO. ARTBA has an ongoing concern about implementation of Buy America requirements in a manner that can needlessly increase federal-aid project costs and delays. Should the Trump Administration choose to make major revisions to the Buy America program through this order, ARTBA will assess the potential effects on federal-aid project funding and delivery, sharing our findings with federal officials and reporting developments to our membership.