Proposed rule would end longstanding Buy America waiver for manufactured products in federal-aid highway projects

FHWA 07-24
Contact: FHWA.PressOffice@dot.gov
Tel.: (202) 366-0660

WASHINGTON- The U.S. Department of Transportation’s Federal Highway Administration (FHWA) announced a Notice of Proposed Rulemaking (NPRM) today to discontinue its general waiver of Buy America requirements for manufactured products used in federal-aid highway projects. In the rulemaking, the agency proposes discontinuing the waiver and creating standards that would apply to manufactured products if the waiver is discontinued. This rulemaking will change outdated policy and bolster American manufacturing while creating good-paying jobs. This proposed rule is a result of the FHWA’s review of the general waiver for manufactured products under the Bipartisan Infrastructure Law’s Build America, Buy America (BABA) Act, which will boost domestic manufacturing, bolster critical supply chains, and support the creation of good-paying union jobs.

“For decades, America’s highway projects were allowed to use taxpayer dollars to purchase products manufactured in other countries, but the Biden-Harris administration is setting out to change that,” said U.S. Transportation Secretary Pete Buttigieg. “As we rebuild America’s infrastructure, this new rule would require federal highway projects to use products manufactured here - in keeping with President Biden’s Investing in America agenda that has helped create 800,000 manufacturing jobs across the country.”

“We’re proposing to do away with a policy that did not incentivize restricted American-based manufacturing. This policy supports the Administration’s commitment to create good-paying jobs within the U.S., allowing domestic manufacturing to grow,” said Federal Highway Administrator Shailen Bhatt. “American businesses now have a long-term incentive to tap into the broader federal government market.”

The Buy America Requirements for Manufactured Products NPRM calls for the elimination of the previous Manufactured Products General Waiver, a general applicability waiver in existence for more than four decades that waived the Buy America requirement for manufactured products. The proposed rule aims to maximize the use of domestically produced manufactured products permanently incorporated in federal-aid highway and bridge projects and asks for comment to outline standards for manufactured products covered under Buy America requirements. The proposed rule is consistent with existing BABA standards for manufactured products implemented by the Office of Management and Budget.

Buy America was enacted in 1983. At that time manufactured products were used in insufficient quantity on highway construction projects to incentivize domestic manufacturing, so there would be little benefit to applying the protections afforded under Buy America.

The proposed rule responds to President Biden’s Executive Order, “Ensuring the Future is Made in All of America by All of America’s Workers.” The Executive Order sets forth a policy that federal agencies should maximize the use of domestic products and strengthen the U.S. manufacturing sector – while seeking to promote private sector investment and opportunity for small businesses, bolster the domestic supply chains, and create jobs.

BABA represents a unique governmentwide market opportunity to expand the domestic manufacturing base. By placing greater value on domestic manufacturing for highway construction, the proposed rule is expected to encourage investment in this sector. It seeks to protect and expand domestic manufacturing, as required under BABA, to increase reliance on U.S.-made products and strengthen the resiliency of our nation’s supply chain.

The proposed rule will not change the Buy America requirements that currently apply to iron or steel products. Nor will the proposed rule change BABA requirements that apply to products classified as construction materials or excluded materials (cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives).

FHWA will also issue a Request for Information (RFI) on the domestic availability of specific manufactured products commonly used in FHWA-funded projects, which will help guide FHWA implementation, should the waiver be rescinded.

More information is available on the NPRM and RFI on FHWA’s Buy America web page.

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