ATSSA notes need for flexibility in final rule for Buy America requirements

Letter to OMB seeks clarity on proposed rule, emphasizes impact on roadway safety

ATSSA provided feedback to the Office of Management and Budget on Sunday regarding the proposed rules for Buy America requirements, asking for clarification on four specific issues and noting the importance of roadway safety infrastructure at a time when traffic fatalities are a major issue nationwide.

“ATSSA members are generally in favor of increasing the capacity to procure domestically-sourced construction materials and manufactured products for use on surface transportation projects,” ATSSA President & CEO Stacy Tetschner wrote to Deputy Controller Deidre A. Harrison. “However, ATSSA members are deeply concerned with the breadth and scope of the [Notice of Proposed Rulemaking] and the impact it could have on the timely and cost-effective delivery of much-needed roadway safety infrastructure improvements.”

The letter is in response to the NPRM on Guidance for Grants and Agreements – 2 CFR Parts 184 and 200 (Docket No. 2023-02617), which was published Feb. 9. The letter notes that ATSSA members manufacture, distribute and install roadway safety infrastructure devices such as guardrail and cable barrier, traffic signs and signals, pavement markings, work zone safety devices.

“It is important that any new Buy America requirements not have the unintended consequence of hindering the delivery of important roadway construction and roadway safety projects across the country,” Tetschner wrote.

He also included the results of a fall 2022 members survey, which found:

• 72% would not expect to be able to domestically source materials or products to meet the new Buy America requirements;
• 86% said the cost of safety devices and projects will increase under the proposed rule—with some projecting increases of as much as 50%;
• 66% said there will either be work interruptions, project completion challenges and delays, liquidated damages, or all three under the proposed rule;
• 85% were concerned with the potential for a burdensome or confusing certification process.

ATSSA “strongly encouraged” OMB to retain its April 18 guidance regarding temporary products, materials, articles and supplies, which stated that tools, equipment and supplies brought to a work site and removed at the end of an infrastructure project were not subject to the rules. The Association also asked OMB to “provide clear direction to project sponsors on this subject.”

Regarding manufactured products, ATSSA “strongly” urged the Federal Highway Administration (FHWA)  to continue its waiver for manufactured products that don’t contain iron or steel.

ATSSA’s four specific responses to the NPRM are as follows.

• Regarding other constructional material standards, ATSSA recommended against expanding the definition to include “coatings.” “Several of the components of coatings, such as paint, come from other countries and would be difficult if not nearly impossible to source in the United States due to other federal regulations and environmental statutes,” Tetschner notes.
• ATSSA requested clarity and certainty on the definition of construction materials to ensure adherence.
• ATSSA requested clarification on how to distinguish between categories of products. If it includes manufactured products, many products used for roadway safety will be unable to comply because there is no near-term source for some materials, which will result in project delays, cancellations and/or significant project cost increases.
• ATSSA raised the issue of aggregates and expressed concerns about OMB “possibly moving well beyond the Congressional intent” of the Infrastructure Investment and Jobs Act (IIJA). The letter specifically addressed issues related to high friction surface treatment, which offers a significant safety benefit.

In closing, Tetschner expressed support for the idea of buying American-made products but asked OMB to recognize the importance of roadway safety in setting requirements.

“OMB should acknowledge the real-world challenges and time needed to create domestically sourced products and understand the need for flexibility in any final rule to avoid unnecessary project cost increases and transportation project impacts,” he wrote.