By Rich Juliano, senior vice president and managing director of the Contractors and P3 Divisions, ARTBA

ARTBA and eight other national associations Feb. 23 wrote top Federal Highway Administration (FHWA) officials, urging the agency to clarify its Buy America policy through a rulemaking as soon as possible.  The Buy America law, which dates to 1982, 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.

In December 2012, with ARTBA’s strong support, 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.

In response, eight plaintiffs filed suit in federal court challenging the FHWA memo.  The parties included manufacturers of steel and iron products, a related association and a union.  In December 2015, a federal district court found the FHWA memo to be in violation of multiple elements of administrative law.  FHWA rescinded its memo on Jan. 6 and has largely left the interpretation of “manufactured products” to its 52 division offices for the time being.  In recent meetings with ARTBA, FHWA officials reported they are considering a rulemaking intended to formalize the content of their 2012 level, but may choose instead to conduct a wide-ranging and lengthier rulemaking process looking at all Buy America regulations.

This week’s letter from the nine national groups, addressed to FHWA Administrator Greg Nadeau, requested the agency undertake an expeditious rulemaking process specific to the “manufactured products” issue within the Buy America rule.  The letter noted the urgency of the circumstances given the many federal-aid highway projects in various stages of construction and the need for clarity.

“The approaching construction season means the industry will soon be working at full force across all regions of the country,” the letter states.  “Everyone involved in federal-aid highway and bridge improvement projects will be seeking to maximize the value of new investments from the federal ‘Fixing America’s Surface Transportation (FAST) Act,’ as well as increased transportation funding in many states.  Inconsistent or extreme interpretations of Buy America at the state or project level can only undermine those efforts.”

Read the full letter.

ARTBA asks that its members and chapters continue to share information about any Buy America-related discussions with DOTs and FHWA division offices.  Please contact me, or Nick Goldstein, with any questions or concerns.