NPCA is continuing to talk with the Federal Highway Administration about the recent District Court ruling that instructed FHWA to lift its exemptions for miscellaneous steel components and strictly interpret the Buy America provision for federally funded construction. Here is an update on where we stand with regard to the rescission of Buy America exemptions earlier this year.
In response to a need for clarification of FHWA Buy America policies, FHWA issued a clarification that created an exemption for lifting devices, tie wire (for rebar-tying guns), and other steel and iron components that are commonly used in the precast industry. The exemptions were issued during the implementation of the American Recovery and Reinvestment Act in 2012. With the exemptions, precast producers were then able to use specific types of foreign-made lifting devices that are not available in the U.S. and foreign steel wire that is compatible with rebar-tying guns common in the industry. In response to a lawsuit filed over the exemptions, the U.S. District Court opinion found that FHWA did not follow the proper rulemaking procedures and ordered FHWA to rescind the exemptions.
Since the court order on Dec. 22, 2015, NPCA has met with FHWA three times to describe the impact of the strict interpretation of Buy America provisions on the precast concrete industry. At the most recent meeting on April 29 in Washington, D.C., Ty Gable, NPCA president, and Rich Krolewski, director of certification and regulatory services, met with the top official at FHWA, Greg Nadeau, FHWA Administrator. “He listened to everything we had to say, asked a lot of questions and requested follow-up information, which we are providing,” Gable said.
During the meeting, NPCA learned that FHWA has drafted a new regulation as mandated by the court that is currently under internal review, a process that will take from one to three months. If approved for release, the proposed rule will be published in the Federal Register and open for a public comment period of 45 days. Once the comment period is complete, FHWA will consider the comments and then issue a final rule, which may take another three to six months.
On April 1, NPCA surveyed the 40 state DOTs that require or accept NPCA Plant Certification regarding their interpretation of the Dec. 22 court action. Responses ranged from 100% strict enforcement of the Buy America rule going forward to ignoring the court action and continuing to grant exceptions until the FHWA institutes a new rule.
“The very earliest we could expect a final rule would be six months,” Gable said, “but more likely it will be in the 9 to 18 month range. In the meantime, we will continue to talk with FHWA and will pass along the comments of NPCA members. We will issue written comments when the proposed rule is published in the Federal Register, will let our members know when the comment period opens and encourage them to participate.”
What to Do Now
If you are bidding on any FHWA-funded work, it is important to evaluate your use of tie wire, lifting devices and any other steel or iron elements that come from foreign manufacturers. Assume that you will be required to furnish documentation that all of the steel and iron components of your products are melted and manufactured in the U.S. and make the appropriate adjustments to your manufacturing process. If you have not received formal communication from your DOT in recent months regarding Buy America, it is important to contact them and make sure you know where they stand before manufacturing any products for the DOT.
Who to Contact
If you have any questions or comments regarding Buy America, please contact Eric Carleton, P.E. or 800-366-7731.