New FHWA guidance on new Buy America requirements clarifies some but leaves much still unanswered.   

On February 1, the Federal Highway Administration issued a new “questions and answers” guidance document addressing expanded Buy America requirements under the Build America, Buy America Act (BABAA). The most important question answered is that cement and asphalt are exempt from BABAA requirements when created or combined with other exempt construction materials (cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives).

However, combining any of the BABAA-exempt materials with any BABAA-covered materials (non-ferrous metals, glass, plastics, etc.) would result in a manufactured product subject to BABAA compliance. So, for example, if titanium shavings were added to a cement mix to add strength, the mix would now have to be BABAA compliant as a manufactured product. 

It should be noted that FHWA's 1983 final Buy America regulations waive the application of Buy America to manufactured products that do not include steel and iron components (consequently, the waiver extends to this previous example). That stated, Buy America requirements apply to any steel or iron component of a manufactured product regardless of the overall composition of the manufactured product (e.g. Buy America applies to the steel wire mesh or steel reinforcing components of a precast reinforced concrete pipe).

FHWA does note, however, that it plans to publish a notice in the Federal Register soon requesting comments on whether it should rescind or keep its manufactured products waiver.

A critical question that remains unanswered is the status of concrete under BABAA—whether it is a BABAA-exempt or BABAA-covered construction material. AGC contends that Congress intended to exempt concrete, as it did with cement.

If you have additional questions or want to flag issues with this new guidance, please contact Deniz Mustafa at [email protected]. AGC will continue to review the guidance and provide additional information.