The Federal Highway Administration contemplates withdrawing its waiver for manufactured products—in place for decades—from Buy America requirements and seeks input.
On March 17, the Federal Highway Administration (FHWA) released a notice and request for comments on their review of the existing general applicability waiver for manufactured products from Buy America requirements. The waiver in question was granted in 1978 simultaneously with the passage of initial Buy America requirements for Federal-aid highway projects and has been in effect ever since.
When the waiver was initially granted, FHWA stated that the waiver was in the public interest because natural materials (such as sand, stone, gravel, and earth materials) were not subject to significant foreign competition due to high transportation costs and pointed to petroleum-based products’ (such as fuels, lubricants, and bituminous products) lack of sufficient availability from domestic manufacturers. Following the initial passage of Buy America requirements, FHWA reviewed and decided to keep the waiver in force in 1983 and 2013.
With the passage of the Build America, Buy America Act in 2021, FHWA is required to once again review the general applicability waiver it issued in 1978. As part of its review, FHWA is asking stakeholders whether the conditions for the waiver’s continued existence are still present, whether the waiver should be continued, discontinued, or modified, and how best to meet new Buy America compliance standards. FHWA’s possible changes to the waiver combined with the Office of Management and Budget’s (OMB) recently proposed guidance (88 FR 8374) leave the highway construction industry stuck in a Buy America limbo wherein they have to abide by initially released guidance while new and proposed changes from multiple federal agencies are just over the horizon.
AGC will be providing feedback to FHWA to ensure that future federal-aid highway projects can support domestic manufacturing without any undue burdens to the construction industry as it works to improve American infrastructure.
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