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Buy America Requirements for Federal Highway Projects (2020)

Chapter: II. APPLICATION TO STEEL AND IRON IN HIGHWAY CONSTRUCTION PROJECTS

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Suggested Citation:"II. APPLICATION TO STEEL AND IRON IN HIGHWAY CONSTRUCTION PROJECTS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Suggested Citation:"II. APPLICATION TO STEEL AND IRON IN HIGHWAY CONSTRUCTION PROJECTS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Suggested Citation:"II. APPLICATION TO STEEL AND IRON IN HIGHWAY CONSTRUCTION PROJECTS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Suggested Citation:"II. APPLICATION TO STEEL AND IRON IN HIGHWAY CONSTRUCTION PROJECTS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Suggested Citation:"II. APPLICATION TO STEEL AND IRON IN HIGHWAY CONSTRUCTION PROJECTS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
×
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Suggested Citation:"II. APPLICATION TO STEEL AND IRON IN HIGHWAY CONSTRUCTION PROJECTS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
×
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Suggested Citation:"II. APPLICATION TO STEEL AND IRON IN HIGHWAY CONSTRUCTION PROJECTS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
×
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Suggested Citation:"II. APPLICATION TO STEEL AND IRON IN HIGHWAY CONSTRUCTION PROJECTS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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NCHRP LRD 80 5 pliance issues involving steel and iron on highway construction projects. A. Steel and Iron Products, Not Just Structural Steel Shortly after Congress enacted the original FHWA Buy Amer- ica provision in 1978, FHWA issued an emergency regulation containing a Public Interest waiver for all “products and materi- als, other than structural steel, used in highway construction.”27 In announcing the emergency regulation, FHWA concluded, “Foreign structural steel has been identified as the only foreign product having a significant nationwide effect on the cost of Federal-aid highway construction projects.”28 As a result of the 1978 emergency regulation, the FHWA Buy America provision applied only to structural steel (such as beams, columns, plates, angles, channels, and pilings).29 Further, under the 1978 emer- gency regulation, structural steel products were considered to be domestic (and thus compliant with the FHWA Buy America provision) as long as “the origin of more than 50 percent of its components” was domestic,30 thus allow ing for significant for- eign content even in structural steel products. However, in January 1983, Congress revised the FHWA Buy America provision to expressly require that all steel used in FHWA-funded projects be produced in the United States.31 In its 1983 regulations implementing the revised FHWA Buy America provision, FHWA acknowledged that Congress in- tended “to make the coverage more encompassing.”32 Accord- ingly, FHWA “expanded the Buy America rule to include all steel products,”33 not just structural steel. FHWA also concluded that “all manufacturing processes for these materials must oc- cur in the United States.”34 This significantly expanded the ap- plication of the FHWA Buy America provision regarding steel products. In 1989 guidance, FHWA clarified that steel manu- facturing processes that must take place in the United States include “smelting, and any subsequent process which alters the steel material’s physical form or shape or changes its chemical Reg. 2039 (Feb. 5, 2019), available at https://www.whitehouse.gov/ presidential-actions/executive-order-strengthening-buy-american- preferences-infrastructure-projects/. The applicability of the January 2019 Executive Order to FHWA-funded projects is examined in Section III.A herein. 27 Buy American Requirements, 43 Fed. Reg. 53,717 (Nov. 17, 1978). 28 Id. 29 Id. (defining “structural steel” as “shapes, plates, H-piling, and sheet piling”); see also Buy America Requirements: Proposed Revisions, 45 Fed. Reg. 77,455, 77,457 (Nov. 24, 1980) (proposing to redefine “structural steel” as “steel sheet piling, H-piling, I-beams, plates, chan- nels, angles, and/or T-sections”). 30 Buy American Requirements, 43 Fed. Reg. 53,717, 53,718 (Nov. 17, 1978). 31 Surface Transportation Assistance Act of 1982, Pub. L. No. 97-424, § 165, 96 Stat. 2097, 2137 (Jan. 6, 1983). 32 Buy America Requirements, 48 Fed. Reg. 53,099, 53,102 (Nov. 25, 1983). 33 Id. 34 Id. at 53,104; see also 23 C.F.R. § 635.410(b)(1)(ii). later iron) used in highway construction projects, as addressed in Section II. Over time, FHWA grant funds have become appli- cable to a wider range of complex manufactured products, and not just highway construction materials. For example, in 2012 Congress significantly expanded the applicability of the FHWA Buy America provision by applying it to all contracts in a proj- ect, where at least one contract is funded by FHWA, addressed in Section V of this digest. Therefore, the FHWA Buy America provision can apply to procurements that are not funded by FHWA. Where the manufactured product to be procured contains significant steel or iron content (e.g., motor vehicles), there is an open question whether the steel or iron components must in- dependently conform to the FHWA Buy America provision, or whether the product (including its steel and iron components) is covered by FHWA’s Manufactured Products waiver, as ad- dressed in Section III. If the Manufactured Products waiver is not applicable, then the product cannot be purchased for use on a project that receives FHWA funds without a project-specific waiver for its steel and iron components. FHWA’s waiver process is addressed in Section IV. Historically there has been very little public rulemaking by FHWA regarding its Buy America provision. FHWA’s Buy America regulations remain unchanged since coverage was added for iron in the early 1990s. However, in 2008, Congress imposed enhanced notice-and-comment requirements on Buy America waivers issued by FHWA. As a result, there has been enhanced visibility of FHWA Buy America decision-making over the past decade. The waiver notice-and-comment proce- dure and waiver decisions made over this time period are dis- cussed in Section IV of this digest. Section VI addresses the relationship between the FHWA Buy America provision and other Buy America laws. Section VII addresses enforcement of the FHWA Buy America provi- sion and penalties for its violation. II. APPLICATION TO STEEL AND IRON IN HIGHWAY CONSTRUCTION PROJECTS Since its inception in 1978, the primary intent of the FHWA Buy America provision has been to ensure that construction materials used on federally assisted highway construction proj- ects are manufactured in the United States.25 Further, the FHWA Buy America provision has long been limited to steel and iron, and it does not apply to other construction materials such as cement and asphalt.26 This section discusses Buy America com- 25 See, e.g., Notice of Buy America Waiver, 80 Fed. Reg. 37,359 (June  30, 2015) (“The focus of that [1978 FHWA] Buy America provision was on large procurements, such as bridge replacement projects, and not on smaller, routine purchases.” (citing H.R. Rep. No. 95-1485 (Aug. 11, 1978)). 26 An Executive Order issued January 31, 2019 would require fed- eral agencies to “maximize” the use of cement in federally assisted con- tracts for “infrastructure projects” (which expressly includes projects to improve “surface transportation, including roadways, bridges, rail- roads, and transit”). Executive Order on Strengthening BuyAmerican Preferences for Infrastructure Projects, Exec. Order No 13858, 84 Fed.

6 NCHRP LRD 80 welding, drilling, and bolting, all of which must take place at a fabrication facility in the United States. No foreign steel or iron content may be introduced by the fabricator. Finally, any coat- ing process (such as galvanizing or painting) must take place in the United States, although the coating product itself need not be domestic, if the coating product does not contain substantial amounts of steel or iron.45 The following steel or iron products are clearly subject to the FHWA Buy America provision46 (meaning that all manufactur- ing processes for these products must occur in the United States, barring a specific waiver or exception): • Structural steel (any structural steel shapes used as load- bearing members); • Steel or iron products used in pavements, bridges, tunnels, or other structures (such as high-strength bolts/ nuts, anchor bolts, anchor rods, dowel bars, bridge bear- ings, and cable wire/strand); • Steel or iron products used in fencing (e.g., fence posts, fence rails, and fabric materials), guardrail (including rails, posts, sections, terminals, and related hardware), and cable barriers; • Steel or iron pipe, piling, casing, conduit, ducting, fire hydrants, manhole covers, rims, risers, and drop inlet grates; • Steel or iron products used in supporting structural members for signs, luminaires, or traffic control systems such as poles, trusses, mast arms, and cables; • Steel or iron rails for railroad or transit infrastructure on a project eligible for FHWA funding; and • Reinforcing steel used in cast-in-place, precast, pre- stressed, or post-tensioned concrete products (includ- ing reinforcing steel couplers, connectors, wire mesh, steel fibers, pre-stressing or post-tensioning strand, wire rope, or cable). Concerns surrounding Buy America compliance of re- inforcing steel have been prominent in recent years.47 Although rebar for use in conventional reinforced concrete construc- tion is available from domestic sources, a number of specialty concrete products rely on foreign steel.48 For example, prior to 2014, the use of ultra-high performance concrete (UHPC) on FWHA-funded projects was “limited due to the lack of domestic production capacity of the steel fiber reinforcement that is used 45 General Material Requirements, 58 Fed. Reg. 38,973, 38,975 (July 21, 1993). 46 Buy America Nationwide Waiver Notification for Commercially Available Off-the-Shelf (COTS) Products with Steel or Iron Compo- nents and for Steel Tie Wire Permanently Incorporated in Precast Con- crete Products, 81 Fed. Reg. 71,784, 71,786 (Oct. 18, 2016). 47 See Section IV.B.1.a for discussion of waivers granted in 2008-09 for experimental use of stainless clad steel rebar. 48 In addition to Buy America concerns, the use of specialty prod- ucts is limited by FHWA regulations restricting the use of patented or proprietary products, in order to ensure adequate competition on FHWA-funded projects. See, e.g., 23 C.F.R. § 635.411 (2018). composition,” including “processes such as rolling, extruding, machining, bending, grinding, and drilling.”35 Even if the steel product was made from “steel billets produced in the United States,”36 it would be treated as foreign steel if the steel billets were “sent out of the country for a subsequent manufacturing process and then brought back into the United States.”37 In 1991, Congress further expanded coverage of the FHWA Buy America provision to require that iron used in FHWA- funded projects also be produced in the United States.38 In the same legislation, Congress also clarified that the coating of steel must take place in the United States.39 As a result, FHWA amended its Buy America regulations in 1993 to provide that “if steel or iron materials are to be used” on an FHWA-funded project, “all manufacturing processes, including application of a coating, for these materials must occur in the United States.”40 “Coating” was defined in the regulations to include “all process- es which protect or enhance the value of the [steel or iron] mate- rial to which the coating is applied.”41 That regulatory language remains in place today. This means that steel or iron products used on an FHWA- funded project must be manufactured from only steel or iron produced at a steel mill in the United States. At the steel mill, sheets or plates of steel or iron may be produced via primary steelmaking processes such as smelting and secondary steel- making processes such as rolling. Raw materials introduced at this location do not have to be domestic,42 and (as discussed in Section IV.C) FHWA has waived the FHWA Buy America pro- vision for certain other iron products introduced at this stage.43 Likewise, certain alloys (such as manganese, tungsten, carbon, vanadium, and chromium) may be added at this stage and do not have to be domestic, if they do not contain substantial amounts of steel or iron.44 However, all of the steel mill manu- facturing processes, from smelting to rolling, must take place in the United States. From there, the steel or iron plates or sheets produced at the steel mill may be fabricated into steel or iron products via processes such as cutting, bending, machining, 35 Memorandum from William A. Weseman, FHWA Chief of Con- struction and Maintenance Division, to FHWA Regional and Division Administrators, Re: Buy America Requirements (July 6, 1989), available at https://www.fhwa.dot.gov/programadmin/contracts/070689.cfm. 36 Id. 37 Id. 38 Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No. 102-240, § 1048, 105 Stat. 1914 (Dec. 18, 1991). 39 Id. § 1041. 40 General Material Requirements, 58 Fed. Reg. 38,973, 38,975 (July 21, 1993). 41 Id. 42 Buy America Requirements, 48 Fed. Reg. 53,099, 53,103 (Nov. 25, 1983). 43 General Material Requirements—Buy America Requirements, 60 Fed. Reg. 15,478, 15,479 (Mar. 24, 1995). 44 Id.; see also Memorandum from William A. Weseman, FHWA Director of Engineering, to FHWA Regional Administrators, Re: Buy America Guidance (July 11, 1994), available at https://www.fhwa.dot. gov/construction/contracts/940711.cfm.

NCHRP LRD 80 7 appropriate.57 Ultimately, the waiver was not granted, due in part to an Executive Order issued in April 2017 ordering federal agencies to “minimize the use of waivers” from Buy America requirements.58 B. Permanently Incorporated Products, Not Temporary Steel As enacted by Congress, the FHWA Buy America provision requires all steel or iron that is “used” on an FHWA-funded project to be “produced in the United States,”59 unless a waiver is granted. However, FHWA has long interpreted the FHWA Buy America provision to apply only to steel or iron products that are “permanently incorporated” into the project,60 not to all steel or iron materials that might be “used” in furtherance of a project. Although FHWA’s regulations implementing the FHWA Buy America provision do not define “permanently incor porated,” the 1983 final rule adopting the regulatory language stated, “only those products which are brought to the construction site and permanently incorporated into the completed project are covered. Construction materials, forms, etc., which remain in place at the contractor’s convenience, but are not required by the contract, are not covered.”61 Permanently incorporated steel or iron products are those that must remain in place at the end of construction, such as structural steel elements of the completed construction proj- ect. Where steel or iron construction materials do not remain onsite after the project is completed, it is reasonable to con- clude that those products are not “permanently incorporated” into the project. For example, the Mabey Bridge & Shore, Inc. v. Schoch case,62 which is summarized in detail in Section VI.A herein, involved temporary steel bridges used to accommodate vehicles or pedestrians while a construction project was under- way but removed after construction. Thus, the temporary steel bridges were not prohibited by the FHWA Buy America pro- vision, despite being manufactured from steel from the United Kingdom.63 57 See, e.g., Comments, Concrete Reinforcing Steel Institute, Docket No. FHWA-2016-0028 (Nov.  30, 2016), available at https://www. regulations.gov/document?D=FHWA-2016-0028-0072. 58 Presidential Executive Order on Buy American and Hire Ameri- can (Apr. 18, 2017), Exec. Order No. 13788, 82 Fed. Reg. 18,837 (Apr. 21, 2017), available at https://www.whitehouse.gov/presidential-actions/ presidential-executive-order-buy-american-hire-american/. 59 23 U.S.C § 313(a) (2018). 60 23  C.F.R. §  635.410(b)(1)(i) (2018); see also Buy America Requirements: Proposed Revisions, 45 Fed. Reg. 77,455, 77,457 (Nov. 24, 1980) (“All steel construction materials which are to be per- manently incorporated into applicable projects are to be domestic origin. . . .”). 61 Buy America Requirements, 48 Fed. Reg. 53,099, 53,103 (Nov. 25, 1983). 62 666 F.3d 862 (3d Cir. 2012). 63 Id. at 869 n.4 (referencing FHWA, Contract Administration Core Curriculum Participant’s Manual and Reference Guide (2006) (stating that the FHWA Buy America provision does not apply to “temporary bridges”)). in the UHPC mix.”49 Because the steel fibers were not manu- factured domestically, UHPC could not be used unless either FHWA issued a project-specific waiver or the foreign steel fibers satisfied the Minimal Use exception to the FHWA Buy America provision.50 In 2014, FHWA announced that it had identified a single domestic supplier that had “secured the domestic materi- als necessary to produce the steel fiber reinforcement specific for UHPC use,” and “that this material is commercially available to all potential purchasers.”51 This indicated that Nonavailability waivers for the fibers would not be appropriate. Similarly, the reinforcing steel in precast concrete products is typically assembled with steel tie wire applied using rebar tying guns, which require the tie wire to be on spools not compat- ible with the standard tie wire typically produced in the United States.52 In 2016, FHWA proposed a temporary one-year waiver of the FHWA Buy America requirements for steel tie wire in precast concrete products, on the basis that the tie wire required for the tie wire guns used in the precast concrete industry is “not produced in the United States in sufficient and reason- ably available quantities.”53 There was strong public support for the waiver, with at least fifty public commenters (including twenty-four state transportation agencies) expressly favoring a waiver for steel tie wire.54 Many of the commenters requested a longer waiver period than the one year proposed by FHWA, with some requesting a two-year waiver, or even a permanent waiver.55 Many commenters also suggested the waiver should apply to all reinforced concrete construction rather than just precast products.56 However, a handful of public commenters (mostly steel industry representatives) opposed the waiver on the grounds that there were domestic sources who were either manufacturing steel tie wire or had the capability to do so, sug- gesting that a Nonavailability waiver for steel tire wire was not 49 Memorandum from Walter C. Waidelich, FHWA Associate Administrator, to FHWA Division Administrators, Re: Ultra High Per- formance Concrete (UHPC)—Availability of Domestic Source of Steel Fiber Reinforcement and Proprietary Product Concerns (Feb. 12, 2014), available at https://www.fhwa.dot.gov/construction/ contracts/ 140212.cfm. 50 Id. 51 Id. However, FHWA cautioned that, in addition to ensuring that the UHPC steel fibers satisfied the FHWA Buy America provision, FHWA grant recipients must avoid specifying proprietary UHPC prod- ucts. FHWA suggested using a performance-based specification for UHPC products. 52 Buy America Nationwide Waiver Notification for Commercially Available Off-the-Shelf (COTS) Products with Steel or Iron Compo- nents and for Steel Tie Wire Permanently Incorporated in Precast Con- crete Products, 81 Fed. Reg. 71,784, 71,787 (Oct. 18, 2016). 53 Id. 54 See, e.g., Comments, American Association of State Highway and Transportation Officials, Docket No. FHWA-2016-0028 (Dec. 1, 2016), available at https://www.regulations.gov/document?D=FHWA-2016- 0028-0034. 55 Id. at Attachment 1, ¶ 7 (“Feedback from our member agencies indicate support for a permanent waiver for tie wire . . . .”). 56 Id. (Waiver for steel tie wire “is appropriate not only for precast, but also for cast-in-place applications and any other contractor activi- ties that require tie wire.”).

8 NCHRP LRD 80 ations where it might not be practicable to remove the products (e.g., ground anchors or soil nails). Therefore, current FHWA guidance indicates that deter- mining whether a steel or iron product is “permanently incor- porated” involves more than just determining whether the contract documents expressly require the product to remain in place at the conclusion of the project. In a June 2011 determi- nation that the FHWA Buy America provision applies to steel micropile casings, FHWA stated that permanently incorpo- rated steel or iron products include “items that are impractical to remove due to design, construction staging or other func- tional requirements,” in addition to “items that are specified in the contract documents (or bid options specified in the con- tract documents) that must remain in place at the end of the project.”69 In a 2016 Federal Register notice, FHWA confirmed its interpretation that the FHWA Buy America provision applies to permanently incorporated steel or iron items “that are not ex- plicitly defined in the contract documents,” but “are impractical to remove due to design, construction, staging, or other func- tional requirements.”70 Steel or iron products specifically identi- fied by FHWA as falling into this category include steel casing for micropiles, sheet piling, and corrugated steel forms.71 In that 2016 Federal Register notice, FHWA also confirmed that the FHWA Buy America provision applies to steel or iron products that facilitate construction, even though they may be incidental to the final product (i.e., serve no “structural func- tion”), and even though they may not be referenced in the con- tract documents, where these products are incorporated into the final product and it is not practical to remove them.72 Ex- amples specifically identified by FHWA include tie wire used to arrange or constrain rebar in reinforced concrete, and steel lift- ing devices or anchors embedded in precast concrete products to facilitate moving the precast concrete products (e.g., by crane rigging) to the desired location on the construction site.73 argued that the contracting agency “mischaracterized” the ring net sys- tem as “temporary” in order to avoid application of Buy America requirements). 69 Memorandum from King W. Gee, FHWA Associate Administra- tor for Infrastructure, to Michael Davies, FHWA Division Administra- tor, Re: Buy America Interpretation (June 13, 2011), available at https:// www.fhwa.dot.gov/construction/contracts/110613.cfm. 70 Buy America Nationwide Waiver Notification for Commercially Available Off-the-Shelf (COTS) Products with Steel or Iron Compo- nents and for Steel Tie Wire Permanently Incorporated in Precast Con- crete Products, 81 Fed. Reg. 71,784, 71,786 (Oct. 18, 2016). 71 Id. See also Comments, Nebraska Department of Roads, Docket No. FHWA-2016-0028, p.4 (Nov. 29, 2016) (expressing concern that the 2016 Federal Register notice states that corrugated steel forms are “per- manently incorporated,” whereas the 1983 final rule, stated that perma- nently incorporated items do not include “forms, etc., which remain in place at the contractor’s convenience, but are not required by the con- tract”), available at https://www.regulations.gov/document?D=FHWA- 2016-0028-0019. 72 Buy America Nationwide Waiver Notification for Commercially Available Off-the-Shelf (COTS) Products with Steel or Iron Compo- nents and for Steel Tie Wire Permanently Incorporated in Precast Con- crete Products, 81 Fed. Reg. 71,784, 71,787 (Oct. 18, 2016). 73 Id. It is more controversial when steel or iron products not manufactured in the United States are left onsite after construc- tion, but are deemed to not be “permanently incorporated” into the project because they “are not required by the contract” and “remain in place at the contractor’s convenience.”64 Where the construction contract expressly calls for the steel or iron prod- ucts to be left in place, that is dispositive that the products are “required by the contract” and not left in place for the conve- nience of the contractor, so the FHWA Buy America provision clearly applies to those products. However, questions arise when a steel or iron product is left in place after construction but is deemed to not be “permanently incorporated” (and thus not subject to the FHWA Buy America provision) because it serves a temporary purpose. Examples include steel or iron products used for excavation shoring or support during con- struction. For example, in December 1993, FHWA con cluded that steel sheet piling produced outside the United States was used for “temporary” excavation support walls on the Massachusetts Central Artery/Tunnel projects, in violation of the FHWA Buy America provision, because the special provi- sions of the construction contract expressly required the con- tractor to leave the sheet piling in place.65 On the other hand, in December 1994, FHWA concluded that steel ground anchors and soil nails “used in temporary phases of construction” such as temporary excavation support are not subject to the FHWA Buy America provision if the ground anchors or soil nails are “not required by the contract to remain in place.”66 These early 1990s determinations appeared to create a bright-line rule, that a steel or iron product is “permanently incorporated” into a project, and thus subject to the FHWA Buy America provision, if the “contract plans or specifications” expressly require the product, “as a condition of a Federal-aid construction contract, to be used and to remain in place at the conclusion of the project.”67 However, this focus on the express language of the contract documents created some concern that the construction plans and specifications might be cleverly drafted to suggest that steel or iron products are “temporary” or may be removed at the contractor’s discretion, in order to avoid application of the FHWA Buy America provision,68 even in situ- 64 Buy America Requirements, 48 Fed. Reg. 53,099, 53,103 (Nov. 25, 1983). 65 Memorandum from William A. Weseman, Director of FHWA Office of Engineering, to John G. Bestgen, Jr., FHWA Regional Admin- istrator, Re: Buy America Requirements (Dec.  2, 1993), available at https://www.fhwa.dot.gov/construction/contracts/931202.cfm. 66 Memorandum from Jesse A. Story, Chief of FHWA Construction and Maintenance Division, to Leon J. Witman, Jr., FHWA Regional Administrator, Re: Buy America Requirements Interpretation— Ground Anchors, Soil Nails, and Geotech Instruments (Dec. 7, 1994), available at https://www.fhwa.dot.gov/construction/contracts/941207. cfm. 67 Id. 68 See, e.g., Hi-Tech Rockfall Construction, Inc. v. County of Maui, No. 08-CV-00081, 2008 U.S. Dist. LEXIS 19196 (D. Haw. Mar. 11, 2008) (denying injunctive relief to disappointed bidder who sought to prevent award of highway rockfall protection project to low bidder furnishing a ring net system manufactured in Italy, where the disappointed bidder

NCHRP LRD 80 9 C. Application to “Miscellaneous” Steel or Iron Products A controversial issue in recent years has been how to han- dle incidental or “miscellaneous” steel or iron products such as washers, bolts, nuts, and screws on FHWA-funded projects. Historically, FHWA considered all such items to be covered by the FHWA Buy America provision,80 meaning that they must be manufactured domestically unless the cost of all such items used on a project falls below the Minimal Use exception (ad- dressed in detail in Section IV.B.4). For example, in a 2004 Federal Register notice, FHWA stated that “the costs of other incidental items, such as nuts and bolts”81 purchased by con- struction contractors for use on FHWA-funded projects is to be included in the calculation of whether such foreign steel and iron products are covered by the Minimal Use exception. This suggested that, once the Minimal Use cost threshold for foreign steel or iron products was reached, any additional steel or iron nuts, bolts, screws, and washers incorporated into an FHWA- funded project must be manufactured domestically in order to comply with the FHWA Buy America provision. Construction contract provisions used by state transportation agencies to enforce the FHWA Buy America provision long reflected this understanding that “miscellaneous” steel or iron products “such as fasteners, nuts, bolts and washers”82 must be produced in the United States. The FHWA Buy America provision has been waived for manufactured products other than steel or iron. However, the FHWA Buy America provision was historically understood to require steel or iron components of manufactured products, such as washers, bolts, nuts, and screws, to be manufactured in the United States.83 In a December 2012 memorandum, FHWA 80 See, e.g., FHWA, Project Construction and Contract Administration, Contract Administration: Buy America Field Compliance (Aug. 2012) (“Bolts, nuts, and washers used as connectors require separate [FHWA Buy America] certification statements since these are produced at different locations and use different manufactur- ing methods than the structural elements.”), available at https://www. fhwa.dot.gov/federal-aidessentials/companionresources/28buyamerica. pdf. 81 Nationwide Waiver of Buy America Requirements for Green Wire/Rod, 69 Fed. Reg. 48,556, 48,557 (Aug. 10, 2004). 82 See, e.g., ADF Group, Inc. v. United States, ICSID Case No. ARB(AF)/00/1, at ¶ 58, 4 Asper Rev. Int’l Bus. & Trade L. 293, 317 (2003). 83 United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union v. Fed. Highway Admin., 151 F. Supp. 3d 76, 81 (D.D.C. 2015) (“Various guidances issued by the FHWA since the 1983 Regulations have confirmed the applicability of Buy America to all steel components and subcomponents, regardless of their form and the extent to which they comprise a particular prod- uct.”). See also Memorandum from Donald P. Steinke, FHWA Chief of Highway Operations, to Edward V.A. Kussy, FHWA Chief Counsel, Re: Buy America Policy Response (Dec. 22, 1997) (“While FHWA does not apply Buy America requirements to ‘manufactured products,’ we do apply the requirements to specific components within those products. . . . If the foreign source components are ferrous, their use must be based on the minimal use threshold.”), available at http://www.fhwa.dot.gov/ programadmin/contracts/122297.cfm; FHWA, Buy America Q&A for In the 2016 Federal Register notice, as a prelude to a possible waiver, FHWA requested public comment “about the supply and availability of Buy America compliant lifting devices that are permanently incorporated into precast concrete products.”74 Most state transportation agencies responding to the notice in- dicated that they were not aware of domestic availability prob- lems regarding steel lifting devices.75 A few state transportation agencies suggested that the lifting devices should not be consid- ered permanently incorporated products subject to the FHWA Buy America provision, as they do not play a structural role in the constructed project and are left in place at the contractor’s convenience.76 Domestic manufacturers of concrete reinforc- ing steel generally opposed a waiver for steel lifting devices on the grounds that they had the capability to manufacture the devices,77 whereas domestic manufacturers of precast concrete products generally favored a waiver for lifting devices on the grounds that they were not available domestically.78 Ultimately, FHWA took no action on a waiver for lifting devices or other steel products permanently incorporated into precast concrete products, due in part to the Executive Order issued in April 2017 ordering federal agencies to “minimize the use of waivers” from Buy America requirements.79 74 Id. at 71,788. 75 See, e.g., American Association of State Highway and Transporta- tion Officials, Comments, Docket No. FHWA-2016-0028 (Dec. 1, 2016) (“[M]ost of our member agencies indicated lacking knowledge to respond .  .  ..”), available at https://www.regulations.gov/document? D=FHWA-2016-0028-0034; DelDOT, Comments, Docket No. FHWA- 2016-0028 (posted Nov.  21, 2016) (“Yes, the supply of Buy America compliant lifting devices seems to be sufficient.”), available at https:// www.regulations.gov/document?D=FHWA-2016-0028-0010. 76 See, e.g., MDOT, Comments, Docket No. FHWA-2016-0028 (Dec. 2, 2016) (“These lifting devices are not structural in nature for the final product design and implementation. In many cases, they may be removed with cutting and patching operations for final incorpora- tion.”), available at https://www.regulations.gov/document?D=FHWA- 2016-0028-0049. 77 See, e.g., Concrete Reinforcing Steel Institute, Comments, Docket No. FHWA-2016-0028 (Nov. 30, 2016), available at https://www.regula- tions.gov/document?D=FHWA-2016-0028-0072; American Step Co., Inc., Comments, Docket No. FHWA-2016-0028 (Nov. 18, 2016), avail- able at https://www.regulations.gov/document?D=FHWA-2016- 0028-0009; Meadow Burke, Comments, Docket No. FHWA-2016-0028 (Nov.  29, 2016), available at https://www.regulations.gov/document? D=FHWA-2016-0028-0018; Dayton Superior, Comments, Docket No. FHWA-2016-0028 (posted Dec.  2, 2016), available at https://www. regulations.gov/document?D=FHWA-2016-0028-0037. 78 See, e.g., National Precast Concrete Association, Comments, Docket No. FHWA-2016-0028 (Dec. 1, 2016), available at https://www. regulations.gov/document?D=FHWA-2016-0028-0043; Granite Pre- cast, Comments, Docket No. FHWA-2016-0028 (Nov. 9, 2016), avail- able at https://www.regulations.gov/document?D=FHWA-2016-0028- 0007; Terre Hill Concrete Products, Comments, Docket No. FHWA- 2016-0028 (Dec.  1, 2016), available at https://www.regulations.gov/ document?D=FHWA-2016-0028-0038. 79 Presidential Executive Order on Buy American and Hire Ameri- can (Apr. 18, 2017), Exec. Order No. 13788, 82 Fed. Reg. 18,837 (Apr. 21, 2017), available at https://www.whitehouse.gov/presidential-actions/ presidential-executive-order-buy-american-hire-american/.

10 NCHRP LRD 80 However, despite the newfound exemption for “miscella- neous” steel and iron products, application of the FHWA Buy America provision to items such as washers, bolts, nuts, and screws remained a source of confusion and controversy.89 For example, a contract dispute between a general contractor for the Massachusetts Department of Transportation and the manu- facturer of a traffic separator product, regarding whether a bolt incorporated into the product was a “miscellaneous” steel prod- uct exempt from the FHWA Buy America provision, resulted in litigation initiated in August 2015 in Impact Recovery Systems, Inc. v. Liddell Brothers, Inc.90 In a July 2013 notice published in the Federal Register, FHWA reasserted its newfound position that “miscellaneous” steel or iron products such as “nuts, bolts, washers and screws” were exempt from the FHWA Buy America provision.91 How- ever, in light of “opposition from various groups in the manu- facturing industry,” FHWA decided to seek public comments on the announced exemption.92 Specifically, FHWA requested pub- lic comment and input on questions such as whether the Mini- mal Use exception provides “an appropriate balance between an undue administrative burden in accounting for every steel and iron item in a project versus giving effect to the intent of Buy America.”93 Responses from state transportation agencies indicated mixed support for the broad exclusion of miscellaneous steel or iron products from the FHWA Buy America provision. Al- though the comments indicated a general consensus that it is not practicable to trace the origin of all steel or iron components of manufactured products, the responses were more nuanced regarding whether construction contractors for state transpor- tation agencies should be allowed to directly purchase miscel- laneous steel or iron products such as washers, bolts, nuts, and screws without regard to their country of origin. A typical re- sponse in support of the exclusion for these miscellaneous steel or iron products came from the Michigan Department of Trans- portation (MDOT): MDOT supports the continued public interest waiver for miscella- neous steel or iron components and hardware necessary to encase, assemble or construct components or subcomponents of manufac- tured products. These items, as noted in the FHWA December 21, 2012, memorandum, should not be covered by Buy America require- ments. MDOT has conducted numerous conversations and meetings with our contracting industry. . . . These companies informed MDOT that these types of parts are stockpiled until use and tracing each item back to their original location of manufacture was not possible. We were told in several instances that these companies would stop bid- ding work for contractors working on Michigan transportation proj- 89 Buy America Policy, 78 Fed. Reg. 41,492, 41,493 (July 10, 2013) (stating that the 2012 FHWA memo “triggered opposition from various groups in the manufacturing industry”). 90 No. 15-CV-00722, 2016 WL 8257098 (W.D. Tex. Apr. 6, 2016); see also Liddell Brothers, Inc. v. Impact Recovery Systems, Inc., No. 15-CV- 13226, 2016 U.S. Dist. LEXIS 36258 (D. Mass. Mar. 21, 2016). 91 Buy America Policy, 78 Fed. Reg. 41,492, 41,493 (July 10, 2013). 92 Id. 93 Id. at 41,496. undertook to specifically address whether “nuts, bolts, washers, and other miscellaneous steel or iron parts used in common off-the-shelf products such as toilets and the filaments in light bulbs must be Buy America compliant.”84 Reexamining the 1983 rulemaking in which FHWA adopted its Buy America regula- tions, the 2012 FHWA memo concluded that the FHWA Buy America provision did not apply to miscellaneous steel or iron components in manufactured products that are not predomi- nantly steel or iron.85 The 2012 FHWA memo extrapolated this conclusion further, and stated that the FHWA Buy America provision also did not apply to “miscellaneous steel or iron com- ponents, subcomponents and hardware necessary to encase, as- semble and construct”86 predominantly steel or iron products (such as structural members, trusses, guardrail, and fencing). The suggestion was that construction contractors on FHWA- funded projects could incorporate “miscellaneous” steel or iron products into the project without regard to the country of origin of the project. Examples of such “miscellaneous” steel or iron products that could now be directly purchased by FHWA grant recipients or their contractors, without regard to country of ori- gin, included “washers, bolts, nuts, screws,” etc.87 The 2012 FHWA memo, which appeared to exempt all “mis- cellaneous” steel or iron products such as washers, bolts, nuts, and screws from the FHWA Buy America provision, was well received by state transportation agencies and their construction contractors. A typical sentiment was expressed by the Virginia Department of Transportation (VDOT): “This seemed to clear up many previous issues that Virginia’s road building industry had with complying with the provisions. For instance, this guid- ance had established that fasteners, bolts, fittings etc. were ex- empted, thus making compliance possible.”88 Federal-aid Program (Dec. 12, 2013), http://www.fhwa.dot.gov/ construction/contracts/buyam_qa.cfm (“Buy America requirements apply to any steel or iron component of a manufactured product regard- less of the overall composition of the manufactured product . .  .  .”); FHWA, Contract Administration Core Curriculum Partici- pant’s Manual and Reference Guide at 58 (2006) (“All foreign steel and iron materials and products are covered by Buy America regardless of the percentage they comprise in a manufactured product or the form they take.”), https://web.archive.org/web/20120926183012/http:/www. fhwa.dot.gov/programadmin/contracts/cacc.pdf ; FHWA, Buy Amer- ica Application to Federal-aid Highway Construction Projects (July 29, 2002) (canceled), http://www.fhwa.dot.gov/programadmin/contracts/ buyamgen.cfm (“All steel and iron materials are covered by Buy Amer- ica regardless of the percentage they comprise in a manufactured prod- uct or form they take.”) 84 Memo from John R. Baxter, FHWA Associate Administrator for Infrastructure, to FHWA Division Administrators et al. (Dec. 21, 2012), (canceled), available at http://www.fhwa.dot.gov/construction/ contracts/121221.cfm. 85 Id. (“The miscellaneous steel or iron components . . . [of] manu- factured products that are not predominantly steel or iron[] are not sub- ject to Buy America coverage.”). 86 Id. 87 Id. 88 Don E. Silies, VDOT Director of Contracts, Recent Ruling on the Buy America Act (Feb.  1, 2016), available at http://www.virginiadot. org/business/const/buyamericaact.asp.

NCHRP LRD 80 11 in most projects.100 However, given the exemption for miscel- laneous steel or iron products announced in the 2012 FHWA memo, the Minimal Use exception would have seemed to no longer apply to such products. FHWA did not take any formal action in response to the 2013 notice and comments. In December 2015, in United Steel, Paper & Forestry, Rub- ber, Manufacturing, Energy, Allied Industrial & Service Workers International Union v. Federal Highway Administration,101 the U.S. District Court for the District of Columbia determined that the exemption for miscellaneous steel or iron products announced in the 2012 FHWA memo was invalid. A labor union, trade association, and individual manufacturers of steel and iron products filed suit against FHWA, seeking injunctive and declaratory relief related to the 2012 FHWA memo.102 The court disagreed with FHWA’s position that the exemption for miscellaneous steel or iron products in the 2012 FHWA memo was merely an interpretation of the 1983 rulemaking in which FHWA adopted its Buy America regulations.103 In fact, the court concluded that the exemption for miscellaneous steel or iron products was “squarely at odds” with the 1983 rulemaking, which expressly expanded FHWA Buy America coverage to “all steel products.”104 The court concluded that the exemption for miscellaneous steel or iron products in the 2012 FHWA memo “was plainly a new waiver,”105 and that it was a substantive (rath- er than interpretive) rule, and therefore invalid because it was issued without notice-and-comment rulemaking as required by both the Administrative Procedures Act (APA)106 and the FHWA Buy America provision.107 Nevertheless, the court stated that its invalidation of the exemption for miscellaneous steel or iron products “should not be construed as a criticism of the sub- stance of the Exemption or the FHWA’s purpose in adopting it. Indeed, the Exemption seems quite sensible.”108 In 2016, after the exemption for miscellaneous steel or iron products was invalidated by the United Steel decision, FHWA proposed a new nationwide waiver for commercially available off-the-shelf (COTS) products with steel or iron components.109 The proposed COTS waiver would have waived FHWA Buy America coverage for manufactured products that are “broadly used in the construction industry” and “available and sold to the public in the retail and wholesale market,” even if the manufac- 100 UDOT, Comments, Docket No. FHWA-2013-0041 (Aug.  8, 2013), available at https://www.regulations.gov/document?D=FHWA- 2013-0041-0020. 101 151 F. Supp. 3d 76, 79 (D.D.C. 2015). 102 Id. at 80. 103 Id. at 93. 104 Id. at 92. 105 Id. at 93. 106 Id. at 92 (citing 5 U.S.C. § 553). 107 Id. at 93 (citing 23 U.S.C. § 313(b)). 108 Id. at 94. 109 Buy America Nationwide Waiver Notification for Commercially Available Off-the-Shelf (COTS) Products with Steel or Iron Compo- nents and for Steel Tie Wire Permanently Incorporated in Precast Con- crete Products, 81 Fed. Reg. 71,784 (Oct. 18, 2016). ects. Minor components and subcomponents should be covered by a public interest waiver.94 However, the Illinois Department of Transportation (IDOT) expressed concern that the exclusion for miscellaneous steel or iron products needed some limits or clarification.95 While agreeing that “[s]mall non-structural hardware (bolts, nuts, washers and screws) generally ¼ [inch] or less”96 should be ex- cluded from FHWA Buy America coverage, IDOT suggested that a blanket exclusion for all miscellaneous steel or iron prod- ucts might be abused in order to purchase significant quantities of foreign steel or iron products when domestic products were available: Illinois would like for all structural fasteners (bolts, nuts and washers) to be tested and required to be melted and manufactured in the Unit- ed States of America. Broad usage terms could be treated as a waiver for structural fasteners by field staff on items that should be rejected due to the availability in the United States.97 VDOT, while acknowledging that it is “practically impos- sible” to confirm compliance of all steel and iron components of manufactured products, still recommended including miscella- neous steel or iron products such as “fasteners, bolts, nuts” on a list of specific standalone products to which the FHWA Buy America provision should apply.98 Despite the exemption for miscellaneous steel or iron prod- ucts announced in the 2012 FHWA memo, a number of respons- es suggested that some state transportation agencies remained under the impression that such items were required to satisfy the FHWA Buy America provision unless they qualified for the Minimal Use exception. For example, the Alaska Department of Transportation and Public Facilities (Alaska DOT&PF) stated that the Minimal Use exception was “vital to Alaska Marine Highway System (AMHS) federally funded projects,” in order to allow the purchase of “smaller manufactured structural steel items” such as “bolts and screws,” but recommended increas- ing the Minimal Use exception “to the higher of $15,000.00; or 3/4 of 1 percent [0.75%] of the contract value.”99 Likewise, the Utah Department of Transportation (UDOT) indicated that the Minimal Use exception needed to be increased to $10,000 to $20,000 in order to ensure that miscellaneous steel or iron products are excluded from the FHWA Buy America provision 94 MDOT, Comments, Docket No. FHWA-2013-0041 (Oct. 22, 2013), available at https://www.regulations.gov/document?D=FHWA- 2013-0041-0083. 95 IDOT, Comments, Docket No. FHWA-2013-0041 (Sept. 6, 2013), available at https://www.regulations.gov/document?D=FHWA-2013- 0041-0050. 96 Id. 97 Id. 98 VDOT, Comments, Docket No. FHWA-2013-0041 (Aug.  29, 2013), available at https://www.regulations.gov/document?D=FHWA- 2013-0041-0067. 99 Alaska DOT&PF, Comments, Docket No. FHWA-2013-0041 (July 25, 2013), available at https://www.regulations.gov/document?D= FHWA-2013-0041-0013.

12 NCHRP LRD 80 Transportation Cabinet (KYTC),118 noted that providing a list of specific products not covered by the proposed waiver made it ambiguous whether the proposed waiver covered all COTS products not listed, such as bolts and screws less than ¾-inch di- ameter, and asked that the waiver be clarified to expressly state that such items are covered by the waiver. Other state transporta- tion agencies, including the Arizona Department of Transporta- tion (ADOT),119 the Maryland Department of Transportation,120 Washington State Department of Transportation (WSDOT),121 and Wyoming Department of Transportation (WYDOT),122 re- quested that the proposed waiver be revised even more broadly, to expressly state that the waiver covers most “miscellaneous” steel or iron products commonly available at hardware stores. In- dustry groups including the Associated General Contractors of America,123 Association of American Railroads,124 and American Traffic Safety Services Association125 also recommended that the monly used on highway construction projects, but are also readily avail- able ‘COTS’ products at any hardware and/or home improvement stores.”), available at https://www.regulations.gov/document?D=FHWA- 2016-0028-0049. 118 KYTC, Comments, Docket No. FHWA-2016-0028 (Dec.  1, 2016) (suggesting that the definition of COTS products should include “nuts, bolts (less than ¾-inch in diameter), washers, fittings, pipe, valves, vaults, cabinets, etc.”), available at https://www.regulations.gov/ document?D=FHWA-2016-0028-0034. 119 ADOT, Comments, Docket No. FHWA-2016-0028 (Nov.  28, 2016) (“COTS products should expand to include miscellaneous items truly available ‘off the shelf ’ of a hardware or big box store.”), available at https://www.regulations.gov/document?D=FHWA-2016-0028-0026. 120 Maryland Department of Transportation (Maryland DOT), Comments, Docket No. FHWA-2016-0028 (Dec. 5, 2016) (“[Maryland DOT] believes that miscellaneous COTS steel or iron components, sub- component, and hardware not subject to existing Buy America require- ments, such as shelves, clamps, fittings, sleeves, washers, bolts, nuts, screws, tie wire, spacers, lifting hooks, faucets, and door hinges, should not be covered as they often represent a very small percentage of the overall steel and iron materials used on federal-aid projects.”), available at https://www.regulations.gov/document?D=FHWA-2016-0028-0069. 121 WSDOT, Comments, Docket No. FHWA-2016-0028 (Dec.  1, 2016) (recommending that COTS products be defined to include “Misc. hardware (nuts, bolts, washers, threaded rod)”), available at https://www.regulations.gov/document?D=FHWA-2016-0028-0034. 122 WYDOT, Comments, Docket No. FHWA-2016-0028 (Nov. 30, 2016) (recommending that COTS products be defined to include “small miscellaneous hardware such as nuts and bolts, and so forth”), available at https://www.regulations.gov/document?D=FHWA-2016-0028-0020. 123 Associated General Contractors of America, Comments, Docket No. FHWA-2016-0028 (Dec.  2, 2016) (recommending that COTS products be defined to include “miscellaneous steel and iron hardware” including “clamps, fittings, sleeves, washers, bolts, nuts screws, etc.”), available at https://www.regulations.gov/document?D=FHWA-2016- 0028-0042. 124 Association of American Railroads, Comments, Docket No. FHWA-2016-0028 (Dec. 2, 2016) (“[T]he COTS waiver should specifi- cally include miscellaneous steel or iron subcomponents, such as nuts, bolts, and fasteners, or should clarify that such items are excluded from coverage.”), available at https://www.regulations.gov/document?D= FHWA-2016-0028-0056. 125 American Traffic Safety Services Association, Comments, Docket No. FHWA-2016-0028 (Dec. 2, 2016) (recommending that the definition of COTS products “be expanded to include items such as tured products contained steel or iron components.110 However, in the Federal Register notice announcing the proposed COTS waiver, FHWA also provided a list of specific products covered by the FHWA Buy America provision which would be excluded from the COTS waiver.111 The list of specific products excluded from the COTS waiver contained a number of miscellaneous steel or iron products, including “any threaded fastening ele- ment with a nominal diameter greater than ¾ inch inclusive and any matching components to it such as nuts and washers” and “incidental steel or iron items that are not explicitly defined in the contract documents but are permanently incorporated.”112 Public comments on the proposed COTS waiver, particularly those from state transportation agencies, revealed widespread disagreement and confusion concerning whether the proposed COTS waiver would exempt miscellaneous steel or iron prod- ucts such as nuts, bolts, washers, and screws from FHWA Buy America coverage. For example, the Delaware Department of Transportation (DelDOT) and the North Carolina Department of Transportation (NCDOT) remarked that it was ambigu- ous whether the proposed waiver for COTS products contain- ing “steel or iron components” would cover direct purchases of standalone steel or iron products such as screws or nails that do not have identifiable components.113 A number of com- menters, including the American Association of State Highway and Transportation Officials (AASHTO),114 Oklahoma Depart- ment of Transportation (Oklahoma DOT),115 Tennessee Depart- ment of Transportation (TDOT),116 MDOT,117 and Kentucky 110 Id. at 71,787. 111 Id. at 71,786. 112 Id. 113 DelDOT, Comments, Docket No. FHWA-2016-0028 (posted Nov.  21, 2016) (“To preclude differing interpretations, the waiver should clarify whether it applies only to products where some compo- nents contain steel or iron (e.g., a traffic signal cabinet), or also to prod- ucts composed entirely of steel or iron (e.g. a screw).”), available at https://www.regulations.gov/document?D=FHWA-2016-0028-0010; NCDOT, Comments, Docket No. FHWA-2016-0028 (Dec.  1, 2016) (“Nails and screws are available commercially. . . . It is very difficult and time consuming to chase the paper for these types of products that are readily available at building supply and hardware stores.”), available at https://www.regulations.gov/document?D=FHWA-2016-0028-0034. 114 AASHTO, Comments, Docket No. FHWA-2016-0028 (Dec. 1, 2016) (“Small (3/4” or less) fasteners (nuts, bolts, screws, etc.). . . . are items commonly used on highway construction projects, but are also readily available ‘COTS’ product at any hardware and/or ‘big box’ home improvement store.”), available at https://www.regulations.gov/ document?D=FHWA-2016-0028-0034. 115 Oklahoma DOT, Comments, Docket No. FHWA-2016-0028 (Oct.  28, 2016) (recommending that “small (<3/4[inch]) fasteners (nuts, bolts and screws)” be covered by the COTS waiver), available at https://www.regulations.gov/document?D=FHWA-2016-0028-0003. 116 TDOT, Comments, Docket No. FHWA-2016-0028 (Nov.  30, 2016) (“[I]t is recommended that the list be expanded to include other items or examples of items for additional clarification. For example..., washers, bolts (less than ¾” diameter), nuts, screws, miscellaneous fas- teners, .  .  . etc. should also be included.”), available at https://www. regulations.gov/document?D=FHWA-2016-0028-0029. 117 MDOT, Comments, Docket No. FHWA2016-0028 (Dec.  2, 2016) (“Small hardware (nuts, bolts, screws, etc.) . .  .  are items com-

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The Federal Highway Administration's “Buy America Act” requires federally funded highway projects to use only steel, iron, and manufactured products produced in the United States.

The TRB National Cooperative Highway Research Program's NCHRP LRD 80: Buy America Requirements for Federal Highway Projects summarizes the intent and application of the provision. It also summarizes the procedure that FHWA has implemented for granting waivers and the impact that court interpretation of such waivers has had on the industry.

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