Buy America - Construction Program Guide - Contract Administration - Construction

Notice of Buy America Waiver Request

Action: Notice, request for comments.

Web posting date: 03/07/2008

Federal Register Notice of Finding Publication Date: N/A

Effective Date of Federal Register: N/A

Close of public comment period : N/A.

Summary: The Federal Highway Administration (FHWA) is seeking comments on whether a waiver of the Buy America requirements of 23 CFR 635.410 should be granted to permit the use of non-domestic 16" pipe piling (10,000 linear feet) ) in the state of Minnesota.

The FHWA will only consider a Buy America waiver when the conditions of 23 CFR § 635.410(c) have been met. This includes: (1) when the application of the requirements under § 635.410(c) would be inconsistent with the public interest; or (2) when steel and iron products are not produced in the United States in sufficient and reasonably available quantities, which are of a satisfactory quality.

The FHWA will consider all comments received in the initial 5-day comment period during our evaluation of the waiver request. Comments received after this period, but before notice of our finding is published in the Federal Register, will be considered to the extent practicable. Follow-up coordination on the comments received may result in a delay in the publication of our waiver finding in the Federal Register. Comments received during the 5-day comment period after notice of our finding is published in the Federal Register will be reviewed, but the finding will continue to remain valid. Comments received during the comment period after the effective date of the finding will be reviewed, and may influence the FHWA's decision to terminate or modify a finding.

Decision:

Waiver denied - domestic pipe pile was available

Comments

Donald Bohach 03/10/2008
Doing this is killing industry one needle stab at a time. There can be no waiver without the cause being that the product is not produced domestically. The pipe product should be melted and manufactured in the U.S.A. This keeps jobs, stregthens the dollar and maintains a standard of quality. After all, all of these companies have invested in a cleaner American and been rewarded by governments that buy from countries and companies that won't make that investment and as a consequence have lower costs.
Eric Hagen 03/11/2008
I am the pipe piling product manager for LB Foster. We have been in the piling business for over 75 years. I can say that 16"; pipe pilng is absolutely readily availble in 100% M&;M as you should need for this project. If you need any further information - please feel free to email or call me at 412-928-3544. Thanks you.
mindy fleishman 03/11/2008
Could we receive a more detailed description of the product in question?
Ted Grodhaus 03/19/2008
I am the President of Skyline Steel Corp. , Parsippany N.J. We produce 16"; pipe piling in the USA presently and we do so to all the requirements of Buy America. Please feel free to call me at 973 795 1431
Mark Schach 03/20/2008
I am the Manager of Field Sales for American Steel Pipe. We have two ERW Steel Pipe Mills located in Birmingham, AL, and 16"; diameter pipe is produced on both of our mills. We understand the item for this referenced project is 16"; x 0.250"; ASTM A252 Grades 2 and 3 which is available in the U.S.A. Please feel free to e-mail or call me at (205) 307-2967.
Joe Limpert 03/20/2008
It's sadly ironic that probably more than half of this country's ";domestic"; steel pipe companies are now foreign owned. You will find that at least one of the companies above, which so adamantly and unequivocally opposes the slightest infraction of ";Buy American";, is foreign owned. The motive for their objection is obvious. With minimal research, you will find that the 16"; pipe for the above referenced project, is in fact, domestic. It was shipped to the project (at great expense) with no knowledge that some of the slabs used to make it's skelp were imported from Brazil. There was also no knowledge on the vendors part that regulation 23CFR635.410 existed. The question is: Should the FHWA impose an astronomical penalty of hundreds of thousands of dollars in round trip freight, handling and restocking charges (by refusing the material) and cause a delay of the project or should it take all the circumstances into account before bludgeoning a small business to death over a minor and accidental infraction of a regulation. The spirit of 23CFR635.410 is appreciated and respected, it is hoped, however, that in this case, the FHWA, after careful consideration, will exercise it's good judgement in the interest of American owned and operated small businesses, by making an exception, rather than catering to the interests of large businesses which have no compunction about ruthlessly eliminating their competition. If you have any questions, please feel free to call me at 941-748-1109.
Joe Limpert 03/21/2008
With all due repect, it is imperative that I correct the claim in the above summary, wherein it is stated that the material in question is, ";non-domestic 16"; pipe piling (10,000')";. The pipe in question is ";DOMESTIC";, I repeat, ";DOMESTIC"; and was manufactured by California Steel Indusries, a domestic steel manufacturer, using U.S. laborers.The test reports have been submitted to Minnesota state inspectors and engineers and they clearly state ";Manufactured in the U.S.A.";I will gladly provide documentation to confirm this fact. The accidental ";infraction"; of 23CFR635.410 occurred because some of the slabs used in making some of the skelp for the pipe were of foreign origin. The vendor in this case was not aware of, nor informed of 23CFR635.410 until the material had already been delivered to the project. The vendor fulfilled the spirit, if not the letter, of ";Buy American"; by providing domestic pipe.Please feel free to contact me at 941-748-1109.
Roderick Young 03/21/2008
I understand that LB Foster and Skyline Steel Corp. are overseas based companies that have a vested interested in squeezing USA based supplier. The cost to the nation of not giving a waiver will be to drive onshore companies, committed to this project, into hardship. LB Foster and Skyline Steel Corp then want to offer to pipe product to the contract at far higher prices. The steel seeking the waiver has been delivered to the job site and LB Foster and Skyline Steel Corp are seeking to spoil this deal. What is required in this case is better labels on pipe products and better outlines of pipe quality specification in supply contracts. A waiver in this case is sought as it would support the spirit of buy USA.
Richard D. Ruquist, PhD, Cambridge, Massachusetts 03/21/2008
This is a case of a large foreign-owned business, Skyline Steel Corp, arguing to deny a waiver for US manufactured steel because some raw material came from Brazil, which after all is located in America. The bottomline is that the contractor who supplied a fixed bid for the highway job may be driven into bankruptcy to the benefit of a foreign-owned business. The intention of the Buy America Law will be subverted.
Mike Helton 03/21/2008
The comments by LB Foster and Skyline are ludicrous. It is obvious they are self serving because they want a shot at a replacement order. The fact of the matter is that when conditions are right many of the steel producers use foreign slabs to produce their product. Call US Steel and ask them if they have ever used foreign slabs or billets in the production of their domestic product. The answer is YES!! The price of steel has risen dramatically since this material shipped and it would be a ridiculous burden placed on the taxpayer if this material had to be replaced. It isn't like there is a risk of this being a substandard product. The ";Buy America Act"; will have to be revised in the near future, because there won't be any American owned steel mills left. For this to even be an issue is a prime example of government waste.
Steve Livingston 03/21/2008
Based on the 2 reasons to approve I think DOT should ask the mill or distributor above to quote the 10,000 feet as required. I am sure they will either not be able to supply on a timely bases or the price will far exceed the 10,000 feet on the job. I would quess unless the oversea parent companies are willing to support their American subsidiary the price will be at least $300/ton over the cost of material on the job. This would be over $63,000. This certainly points out that the ";FHWA"; should ";consider a Buy America waiver when the conditions of 23 CFR 635.410( c) have been met: (1) when the application of the provision would be inconsistent with the public interest"; Especially since the material on the job was produced in the USA (if California is part of the USA).
Al Hibbs 03/21/2008
I hope the decision is summed up in a reasonable way, taking account of whether it is reasonably likely the customer and supplier acted in good faith throughout(for example was US manufactured steel purchased only to subsequently discover some ancillary or part of some sub-process was in fact foreign, or was the whole shipment foreign?). If the waiver is not authorised, and this causes hardship to US businesses that have acted in good faith then the question is whether this would have been in the public interest.
Keith Bowen 03/21/2008
Why punish this small company for an accidental violation of 23CFR635.410. This company had no knowledge of the requirement nor did the contractor on the project. Why does this buck stop at the supplier. Why not the manufacturer of the steel. Why doesn't the government require the manufacturers to state the slabs came from another country and not be able to stamp ";Made in USA"; onto the finished product. Lets help to preserve the small business in this country instead of being hypocritical and buying US steel from foreign mega-corporations who only serve their own interests. Accidents do happen and this seems to be one of those times. Let's not legislate the demise of truly USA owned small business in favor of the ever increasing foreign ownership of our country.
Joe Limpert 03/22/2008
ref. above comment from Donald Bohach / Stupp Corp. Response to that comment: On 02/14/08, Rick Steinheimer of Stupp Corp was contacted in regards to getting a quote for this material. Stupp would not quote as they had no available room in their production schedule for several months. This can be documented.ref. above ";no comment";, Mindy Fleishman USS.COM / U.S. Steel? Response to that ";no comment";: U.S. Steel Corp., Rose Schwartz (800-553-3963) was contacted regarding this requirement on 02/13/08. They would not quote, but said they would have one of their ";select"; distributors contact us. That did occur, but a quote was not forthcoming and the rolling schedule for 16"; was indicated to be May or June. Ref. above comment, Eric Hagen, L.B. Foster Co. Response to comment:L.B. Foster is a distributor of foreign and domestic steel products. It's my understanding that they may be quoting a May delivery from Taneris (a Columbian owned U.S. company). I contacted Tenaris months ago and was informed they had an exclusive agreement with L.B. Foster to roll A-252 (piling) for L.B. Foster Company ";only";. They would not quote anyone else A252-2.Ref. above comment, Ted Grodhaus, president, Skyline Steel Corp. Response to comment: They have also been contacted and declined to quote the original supplier on this project. Skyline is a foreign owned company which manufactures spiral weld steel pipe and also buys foreign steel. I'd like to audit their QC and trace the heat numbers on all their ";M&;M"; products. I surmise that it's possible (likely?) that foreign slabs and/or coils have ocassionally been used to make their ";M&;M";, but if so, it was probably an accident and would be difficult to substantiate. Ref. above comment, Mark Schach, American Steel Pipe. Response to that comment: Contacted American Steel Pipe, Charles Ricks, 02/13/08. They wouldn't quote on the basis that they have a list of select distributors, of which this company was not included. I contend that the negative comments regarding this requested waiver are generated strictly from self interest and protectionism which has little regard, in this case, for protecting U.S. business. Although the CFR which has brought this particular case to your attention is well intended, it has created the other problem of allowing a hand full of powerful ";so called"; domestic steel mills and pipe distributors to eliminate healthy and honest competition. This effect alone will cause steel prices to increase which will ultimately burden other sectors of the economy with higher costs.

Donald Bohach 03/10/2008

Doing this is killing industry one needle stab at a time. There can be no waiver without the cause being that the product is not produced domestically. The pipe product should be melted and manufactured in the U.S.A. This keeps jobs, stregthens the dollar and maintains a standard of quality. After all, all of these companies have invested in a cleaner American and been rewarded by governments that buy from countries and companies that won't make that investment and as a consequence have lower costs.

Eric Hagen 03/11/2008

I am the pipe piling product manager for LB Foster. We have been in the piling business for over 75 years. I can say that 16"; pipe pilng is absolutely readily availble in 100% M&;M as you should need for this project. If you need any further information - please feel free to email or call me at 412-928-3544. Thanks you.

mindy fleishman 03/11/2008

Could we receive a more detailed description of the product in question?

Ted Grodhaus 03/19/2008

I am the President of Skyline Steel Corp. , Parsippany N.J. We produce 16"; pipe piling in the USA presently and we do so to all the requirements of Buy America. Please feel free to call me at 973 795 1431

Mark Schach 03/20/2008

I am the Manager of Field Sales for American Steel Pipe. We have two ERW Steel Pipe Mills located in Birmingham, AL, and 16"; diameter pipe is produced on both of our mills. We understand the item for this referenced project is 16"; x 0.250"; ASTM A252 Grades 2 and 3 which is available in the U.S.A. Please feel free to e-mail or call me at (205) 307-2967.

Joe Limpert 03/20/2008

It's sadly ironic that probably more than half of this country's ";domestic"; steel pipe companies are now foreign owned. You will find that at least one of the companies above, which so adamantly and unequivocally opposes the slightest infraction of ";Buy American";, is foreign owned. The motive for their objection is obvious. With minimal research, you will find that the 16"; pipe for the above referenced project, is in fact, domestic. It was shipped to the project (at great expense) with no knowledge that some of the slabs used to make it's skelp were imported from Brazil. There was also no knowledge on the vendors part that regulation 23CFR635.410 existed. The question is: Should the FHWA impose an astronomical penalty of hundreds of thousands of dollars in round trip freight, handling and restocking charges (by refusing the material) and cause a delay of the project or should it take all the circumstances into account before bludgeoning a small business to death over a minor and accidental infraction of a regulation. The spirit of 23CFR635.410 is appreciated and respected, it is hoped, however, that in this case, the FHWA, after careful consideration, will exercise it's good judgement in the interest of American owned and operated small businesses, by making an exception, rather than catering to the interests of large businesses which have no compunction about ruthlessly eliminating their competition. If you have any questions, please feel free to call me at 941-748-1109.

Joe Limpert 03/21/2008

With all due repect, it is imperative that I correct the claim in the above summary, wherein it is stated that the material in question is, ";non-domestic 16"; pipe piling (10,000')";. The pipe in question is ";DOMESTIC";, I repeat, ";DOMESTIC"; and was manufactured by California Steel Indusries, a domestic steel manufacturer, using U.S. laborers.The test reports have been submitted to Minnesota state inspectors and engineers and they clearly state ";Manufactured in the U.S.A.";I will gladly provide documentation to confirm this fact. The accidental ";infraction"; of 23CFR635.410 occurred because some of the slabs used in making some of the skelp for the pipe were of foreign origin. The vendor in this case was not aware of, nor informed of 23CFR635.410 until the material had already been delivered to the project. The vendor fulfilled the spirit, if not the letter, of ";Buy American"; by providing domestic pipe.Please feel free to contact me at 941-748-1109.

Roderick Young 03/21/2008

I understand that LB Foster and Skyline Steel Corp. are overseas based companies that have a vested interested in squeezing USA based supplier. The cost to the nation of not giving a waiver will be to drive onshore companies, committed to this project, into hardship. LB Foster and Skyline Steel Corp then want to offer to pipe product to the contract at far higher prices. The steel seeking the waiver has been delivered to the job site and LB Foster and Skyline Steel Corp are seeking to spoil this deal. What is required in this case is better labels on pipe products and better outlines of pipe quality specification in supply contracts. A waiver in this case is sought as it would support the spirit of buy USA.

Richard D. Ruquist, PhD, Cambridge, Massachusetts 03/21/2008

This is a case of a large foreign-owned business, Skyline Steel Corp, arguing to deny a waiver for US manufactured steel because some raw material came from Brazil, which after all is located in America. The bottomline is that the contractor who supplied a fixed bid for the highway job may be driven into bankruptcy to the benefit of a foreign-owned business. The intention of the Buy America Law will be subverted.

Mike Helton 03/21/2008

The comments by LB Foster and Skyline are ludicrous. It is obvious they are self serving because they want a shot at a replacement order. The fact of the matter is that when conditions are right many of the steel producers use foreign slabs to produce their product. Call US Steel and ask them if they have ever used foreign slabs or billets in the production of their domestic product. The answer is YES!! The price of steel has risen dramatically since this material shipped and it would be a ridiculous burden placed on the taxpayer if this material had to be replaced. It isn't like there is a risk of this being a substandard product. The ";Buy America Act"; will have to be revised in the near future, because there won't be any American owned steel mills left. For this to even be an issue is a prime example of government waste.

Steve Livingston 03/21/2008

Based on the 2 reasons to approve I think DOT should ask the mill or distributor above to quote the 10,000 feet as required. I am sure they will either not be able to supply on a timely bases or the price will far exceed the 10,000 feet on the job. I would quess unless the oversea parent companies are willing to support their American subsidiary the price will be at least $300/ton over the cost of material on the job. This would be over $63,000. This certainly points out that the ";FHWA"; should ";consider a Buy America waiver when the conditions of 23 CFR 635.410( c) have been met: (1) when the application of the provision would be inconsistent with the public interest"; Especially since the material on the job was produced in the USA (if California is part of the USA).

Al Hibbs 03/21/2008

I hope the decision is summed up in a reasonable way, taking account of whether it is reasonably likely the customer and supplier acted in good faith throughout(for example was US manufactured steel purchased only to subsequently discover some ancillary or part of some sub-process was in fact foreign, or was the whole shipment foreign?). If the waiver is not authorised, and this causes hardship to US businesses that have acted in good faith then the question is whether this would have been in the public interest.

Keith Bowen 03/21/2008

Why punish this small company for an accidental violation of 23CFR635.410. This company had no knowledge of the requirement nor did the contractor on the project. Why does this buck stop at the supplier. Why not the manufacturer of the steel. Why doesn't the government require the manufacturers to state the slabs came from another country and not be able to stamp ";Made in USA"; onto the finished product. Lets help to preserve the small business in this country instead of being hypocritical and buying US steel from foreign mega-corporations who only serve their own interests. Accidents do happen and this seems to be one of those times. Let's not legislate the demise of truly USA owned small business in favor of the ever increasing foreign ownership of our country.

Joe Limpert 03/22/2008

ref. above comment from Donald Bohach / Stupp Corp. Response to that comment: On 02/14/08, Rick Steinheimer of Stupp Corp was contacted in regards to getting a quote for this material. Stupp would not quote as they had no available room in their production schedule for several months. This can be documented.ref. above ";no comment";, Mindy Fleishman USS.COM / U.S. Steel? Response to that ";no comment";: U.S. Steel Corp., Rose Schwartz (800-553-3963) was contacted regarding this requirement on 02/13/08. They would not quote, but said they would have one of their ";select"; distributors contact us. That did occur, but a quote was not forthcoming and the rolling schedule for 16"; was indicated to be May or June. Ref. above comment, Eric Hagen, L.B. Foster Co. Response to comment:L.B. Foster is a distributor of foreign and domestic steel products. It's my understanding that they may be quoting a May delivery from Taneris (a Columbian owned U.S. company). I contacted Tenaris months ago and was informed they had an exclusive agreement with L.B. Foster to roll A-252 (piling) for L.B. Foster Company ";only";. They would not quote anyone else A252-2.Ref. above comment, Ted Grodhaus, president, Skyline Steel Corp. Response to comment: They have also been contacted and declined to quote the original supplier on this project. Skyline is a foreign owned company which manufactures spiral weld steel pipe and also buys foreign steel. I'd like to audit their QC and trace the heat numbers on all their ";M&;M"; products. I surmise that it's possible (likely?) that foreign slabs and/or coils have ocassionally been used to make their ";M&;M";, but if so, it was probably an accident and would be difficult to substantiate. Ref. above comment, Mark Schach, American Steel Pipe. Response to that comment: Contacted American Steel Pipe, Charles Ricks, 02/13/08. They wouldn't quote on the basis that they have a list of select distributors, of which this company was not included. I contend that the negative comments regarding this requested waiver are generated strictly from self interest and protectionism which has little regard, in this case, for protecting U.S. business. Although the CFR which has brought this particular case to your attention is well intended, it has created the other problem of allowing a hand full of powerful ";so called"; domestic steel mills and pipe distributors to eliminate healthy and honest competition. This effect alone will cause steel prices to increase which will ultimately burden other sectors of the economy with higher costs.