FHWA releases proposal to eliminate longstanding Buy America waiver

The Federal Highway Administration (FHWA) on Thursday released a Notice of Proposed Rulemaking (NPRM) announcing its intention to discontinue the current waiver of Buy America requirements for manufactured products used in federal-aid highway projects.

This waiver, which has been in place since 1983, was required to be reviewed under a provision in the Infrastructure Investment and Jobs Act (IIJA) that instructed federal agencies to examine existing waivers that have been in place for more than five years and determine whether these waivers should remain in place.

FHWA is soliciting comments to the NPRM – comments that will be due within 60 days of formal publication of the NPRM in the Federal Register. This publication has not occurred, but ATSSA will inform members of the deadline for comments when that date is available.

In the NPRM, FHWA proposes to require that manufactured products included in federal-aid highway projects have a domestic content of at least 55%, as measured by the cost of the product components.  FHWA appears to understand the potential impacts of discontinuing the current manufactured product waiver by stating in the NPRM that “FHWA understands that discontinuing the Manufactured Products General Waiver and applying Buy America requirements on manufactured products may result in cost increases, project delays, and product unavailability if not done carefully.”

Following are next steps in the process:

• Comments to the federal docket will be received for 60 days after publication in the Federal Register.
• FHWA will then consider the comments and make any adjustments they deem necessary to the language included in the NPRM.
• FHWA will then issue a final rule on the use of manufactured products as part of federal-aid highway projects, along with anticipated guidance on implementation of the final rule.

While the new requirements in the NPRM are only proposed at this time, until a final rule is issued, it is important for FHWA to hear any concerns.

ATSSA will continue to review the NPRM and provide members with additional information as it is available. ATSSA also will provide comments directly to the federal docket.  In addition, ATSSA members are asked to consider providing comments related to the particulars contained in the NPRM.

Last month, ATSSA held a virtual town hall where we were joined by FHWA Construction Team Lead Brian Hogge, to hear more about the implementation process and the status of the manufactured products waiver, among other topics. A recording of the webinar is available.