Notice2022-08491
Notice of Listening Sessions and Request for Information
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 21, 2022
Issuing agencies
Management and Budget Office
Abstract
The Build America, Buy America Act ("the Act"), enacted as part of the Infrastructure Investment and Jobs Act (IIJA) on November 15, 2021, provides for the application of domestic preference requirements to infrastructure projects funded by Federal financial assistance and also includes requirements to standardize and simplify application of the Buy American Act in government contracts. The Act directs the Office of Management and Budget (OMB) to issue guidance that will assist agencies as they apply the new requirements. OMB seeks input from the public concerning the Act's requirement that any infrastructure projects funded with Federal financial assistance use only construction materials "produced in the United States." The Act also requires the Federal Acquisition Regulatory Council (FAR Council) to provide a definition for "end product manufactured in the United States." To that end, OMB also seeks input, as a member of the FAR Council, on a definition for "end product manufactured in the United States," for incorporation into the FAR, as required by the Act.
Full Text
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<title>Federal Register, Volume 87 Issue 77 (Thursday, April 21, 2022)</title>
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[Federal Register Volume 87, Number 77 (Thursday, April 21, 2022)]
[Notices]
[Pages 23888-23891]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-08491]
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OFFICE OF MANAGEMENT AND BUDGET
Notice of Listening Sessions and Request for Information
AGENCY: Office of Management and Budget.
ACTION: Notice of listening session(s) and request for information.
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SUMMARY: The Build America, Buy America Act (``the Act''), enacted as
part of the Infrastructure Investment and Jobs Act (IIJA) on November
15, 2021, provides for the application of domestic preference
requirements to infrastructure projects funded by Federal financial
assistance and also includes requirements to standardize and simplify
application of the Buy American Act in government contracts. The Act
directs the Office of Management and Budget (OMB) to issue guidance
that will assist agencies as they apply the new requirements. OMB seeks
input from the public concerning the Act's requirement that any
infrastructure projects funded with Federal financial assistance use
only construction materials ``produced in the United States.'' The Act
also requires the Federal Acquisition Regulatory Council (FAR Council)
to provide a definition for ``end product manufactured in the United
States.'' To that end, OMB also seeks input, as a member of the FAR
Council, on a definition for ``end product manufactured in the United
States,'' for incorporation into the FAR, as required by the Act.
DATES: Written submissions must be received on or before 11:59 p.m. May
23, 2022.
ADDRESSES: Please submit any written comments electronically through
the Federal eRulemaking Portal at <a href="https://regulations.gov">https://regulations.gov</a>. Go to
<a href="https://regulations.gov">https://regulations.gov</a> and select ``Office of Management and Budget''
from the agency menu to submit or view public comments.
Please note that all public comments received are subject to the
Freedom of Information Act and will be posted in their entirety,
including any personal and/or business confidential information
provided. Do not include any information you would not like to be made
publicly available. All statements received, including attachments and
other supporting materials, are part of the public record and subject
to public disclosure. You should submit only information that you wish
to make available publicly.
In addition to receiving written comments, OMB plans to hold two
public listening sessions, addressing the themes specified, on the
following dates:
Listening Session 1--April 25 (10:30 a.m.-12:00 p.m. EDT). This
listening session will focus on non-ferrous metals and plastic and
polymer-based products (including polyvinylchloride, composite building
materials, and polymers used in fiber optic cables).
To register for Listening Session 1, visit: <a href="https://www.eventbrite.com/e/public-listening-session-request-for-information-on-construction-materials-tickets-321722569867">https://www.eventbrite.com/e/public-listening-session-request-for-information-on-construction-materials-tickets-321722569867</a>.
Listening Session 2--April 28 (2:00 p.m.-3:30 p.m. EDT). This
listening session will focus on glass (including optic glass), lumber,
drywall, and all other products.
To register for Listening Session 2, visit: <a href="https://www.eventbrite.com/e/public-listening-session-request-for-information-on-construction-materials-tickets-314863694787">https://www.eventbrite.com/e/public-listening-session-request-for-information-on-construction-materials-tickets-314863694787</a>.
FOR FURTHER INFORMATION CONTACT: For questions about this RFI, please
contact Tim Soltis, Office of Management and Budget, 202-395-7587, or
via email (preferred) at <a href="/cdn-cgi/l/email-protection#84d0ede9ebf0ecfdaac2aad7ebe8f0edf7c4ebe9e6aae1ebf4aae3ebf2"><span class="__cf_email__" data-cfemail="dd89b4b0b2a9b5a4f39bf38eb2b1a9b4ae9db2b0bff3b8b2adf3bab2ab">[email protected]</span></a>. For questions
about the listening sessions, please email
<a href="/cdn-cgi/l/email-protection#c38e819bed8c8e81ed8ea2a7a68aad82aea6b1aaa0a283acaea1eda6acb3eda4acb5"><span class="__cf_email__" data-cfemail="df929d87f190929df192bebbba96b19eb2baadb6bcbe9fb0b2bdf1bab0aff1b8b0a9">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: On November 15, 2021, President Biden signed
into law the Infrastructure Investment and Jobs Act, Public Law 117-58,
which includes the Build America, Buy America Act (``the Act''). Public
Law 117-58, Sec. 70901-52. By strengthening requirements for the use
of iron, steel, manufactured products, and construction materials
produced in the United States, the Act will bolster America's
industrial base, protect national security, and support high-paying
jobs.
Construction Materials Acquired Under Federal Financial Assistance
Programs
The Act affirms, consistent with Executive Order 14005, Ensuring
the Future Is Made in All of America by All of America's Workers (``the
Executive Order''), this Administration's priority to ``use terms and
conditions of Federal financial assistance awards to maximize the use
of goods, products, and materials produced in, and services
[[Page 23889]]
offered in, the United States.'' (Exec. Order No. 14005). Under the
Act's requirements, all iron, steel, manufactured products, and
construction materials used in infrastructure projects funded at least
partly by Federal financial assistance must be produced in the United
States. In contrast to the Buy America requirement applied to the 2009
American Recovery and Reinvestment Act, the statutory authority
provided by the Act is not limited to the funds appropriated or
authorized in the IIJA. BABA prohibits the award of Federal financial
assistance for infrastructure unless all of the iron, steel,
manufactured products, and construction materials used in the project
are produced in the United States.
Waivers traditionally available under existing Buy America laws are
authorized under the Act where (1) applying the Buy America requirement
would be inconsistent with the public interest; (2) where the iron,
steel, manufactured products or construction material is not produced
in the United States in sufficient and reasonably available quantities
or of a satisfactory quality; and (3) where inclusion of the domestic
products or construction materials will increase the cost of the
overall project by more than 25 percent. In addition, Congress directs
that the Act be applied in a manner consistent with U.S. trade
agreement obligations related to Government procurement.
The Act empowers OMB's Made in America Office (``MIAO'') to
maximize and enforce compliance with legal authorities, including the
Act itself, which establish preferences for goods made in the United
States. MIAO aims to increase reliance on domestic supply chains and
reduce the need for products that are not produced in the United States
through a strategic process aimed at: Achieving consistency across
agencies; gathering data to support decision-making to make U.S. supply
chains more resilient; bringing increased transparency to waivers in
order to send clear demand signals to domestic producers; and
prioritizing efforts on changes that will have the greatest impact.
(OMB Memorandum M-21-26, Increasing Opportunities for Domestic Sourcing
and Reducing the Need for Waivers from Made in America Laws available
at: <a href="https://www.whitehouse.gov/wp-content/uploads/2020/11/M-21-06.pdf">https://www.whitehouse.gov/wp-content/uploads/2020/11/M-21-06.pdf</a>).
The Act defines construction materials to be ``produced in the
United States'' if ``all manufacturing processes'' for the materials
occurred in the United States. The Act directs OMB to issue standards
that define the term ``all manufacturing processes'' as it applies to
U.S.-produced construction materials. In doing so, OMB must:
(A) Ensure that the standards require that each manufacturing
process required for the manufacture of the construction material and
the inputs of the construction material occurs in the United States;
and
(B) take into consideration and seek to maximize the direct and
indirect jobs benefited or created in the production of the
construction material.
To establish standards defining the term ``all manufacturing
processes'' in the case of construction materials, OMB must first
determine to which materials the standards will apply. The IIJA finds
that ``construction materials'' include an article, material, or
supply--other than an item of primarily iron or steel; a manufactured
product; cement and cementitious materials; aggregates such as stone,
sand, or gravel; or aggregate binding agents or additives--that is or
consists primarily of: Non-ferrous metals, plastic and polymer-based
products (including polyvinylchloride, composite building materials,
and polymers used in fiber optic cables), glass (including optic
glass), lumber, and drywall.
OMB seeks input on whether to refine this list, and requests input
on specific materials or products or categories of materials or
products that should be added, removed, or clarified, as well as advice
on how to distinguish construction materials from manufactured
products. Distinguishing construction materials from manufactured
products is particularly important given the different standards the
Act establishes for determining whether each is ``produced in the
United States.'' A manufactured product is produced in the United
States if ``the manufactured product was manufactured in the United
States; and (ii) the cost of the components of the manufactured product
that are mined, produced, or manufactured in the United States is
greater than 55 percent of the total cost of all components of the
manufactured product, unless another standard for determining the
minimum amount of domestic content of the manufactured product has been
established under applicable law or regulation.'' See IIJA 70912(6)(B).
A construction material is produced in the United States if ``all
manufacturing processes for the construction material occurred in the
United States.'' See IIJA 70912(6)(C).
Insufficient clarity regarding whether a particular item is a
construction material or a manufactured product may undermine the goals
of the Act.
OMB also notes that under the Act, the term ``construction
materials'' cannot include cement and cementitious materials,
aggregates such as stone, sand, or gravel, or aggregate binding agents
or additives. See IIJA 70917(c)(1). Further, OMB's standards defining
``all manufacturing processes'' for construction material are
prohibited from including cementitious materials, aggregates such as
stone, sand, or gravel, or aggregate binding agents or additives as
inputs of the construction material. See IIJA 70917(c)(2).
End Products Acquired Through Federal Procurement
For Federal procurements, section 70921(d) of the Act requires the
FAR Council to provide a definition in the FAR for ``end product
manufactured in the United States,'' including ``guidelines to ensure
that manufacturing processes involved in production of the end product
occur domestically.'' FAR 25.003 defines end product as ``articles,
materials, and supplies to be acquired for public use'' and further
defines ``domestic end product'' as including an end product
manufactured in the United States if the cost of its components mined,
produced, or manufactured in the United States exceeds 55 percent of
the cost of all components--a content level that will increase over
time pursuant to recent FAR regulatory changes issued in accordance
with section 8 of the Executive Order. See 87 FR 12780. However,
neither the Buy American Act (BAA, 41 U.S.C. 8301-8305), which governs
domestic preferences for Federal procurement of supplies, nor Executive
Orders that implement the BAA, namely Executive Orders 10582, 13881, or
14005, define the term ``manufacturing.'' The FAR also is silent on the
meaning of this term.
The Government Accountability Office (GAO) and courts have not
articulated a single standard, but generally found during challenges
arising under the BAA that manufacturing involves changes in physical
character, and therefore actions such as testing and packaging are not
part of the manufacturing process. See What Is Manufacturing? Why Does
the Definition Matter? (Congressional Research Service, R44755).
In the context of helping determine if small businesses are
manufacturers that qualify for set-asides, SBA's regulations state that
a manufacturer ``performs the primary activities in transforming
inorganic or organic substances, including the assembly of parts and
[[Page 23890]]
components, into the end item being acquired. The end item must possess
characteristics which, as a result of mechanical, chemical or human
action, it did not possess before the original substances, parts or
components were assembled or transformed. The end item may be finished
and ready for utilization or consumption, or it may be semi-finished as
a raw material to be used in further manufacturing. Firms which perform
only minimal operations upon the item being procured do not qualify as
manufacturers of the end item. Firms that add substances, parts, or
components to an existing end item to modify its performance will not
be considered the end item manufacturer where those identical
modifications can be performed by and are available from the
manufacturer of the existing end item.'' See 13 CFR 121.406(b)(2).
OMB seeks feedback, on the FAR Council's behalf, to inform the
definition and guidance on the meaning of manufacturing for purposes of
determining if an end product is manufactured in the United States. On
its own behalf, OMB seeks information from the public on the value of
aligning the definition of manufacturing for the purposes of Federal
procurement and Federal financial assistance.
Maximizing the Value of Public Feedback
Responses to this RFI will assist OMB in achieving the goals and
objectives of the Act and the Executive Order in the most effective
manner possible. Therefore, public input is a vital component of
informed policy making. OMB encourages public comment on these
questions and seek any other information commenters believe is relevant
to OMB's efforts. The type of feedback that would be especially useful
includes recommendations for specific definitions, rules, regulations,
and policies that will maximize the use of goods, materials, and
products produced in the United States while ensuring that
infrastructure projects are efficient and effective, including by
working to avoid waste, increase the competitiveness of the U.S.
economy, improve job opportunities through high labor standards,
advance equity and support for underserved and disadvantaged
communities, and build resilient infrastructure that helps combat the
climate crisis, consistent with Executive Order 14052 on Implementation
of the Infrastructure Investment and Jobs Act.
Commenters should identify, with specificity, administrative
burdens, program requirements, or unnecessary complexity that may
impose unjustified barriers in general, or that may have adverse
effects on equity for all, including individuals who belong to
underserved communities that have been denied equitable treatment, such
as Black, Latino, and Indigenous and Native American persons, Asian
Americans and Pacific Islanders and other persons of color; members of
religious minorities; lesbian, gay, bisexual, transgender, and queer
(LGBTQ+) persons; persons with disabilities, including learning
disabilities; persons who live in rural areas; and persons otherwise
adversely affected by persistent poverty or inequality.
Commenters should provide, with as much detail as possible, an
explanation why their recommendations advance the statutory and
regulatory objectives of the Act. Additionally, where applicable,
please provide citations and sources that support your recommendations.
If commenters identify benefits, costs, burdens, loopholes, or
shortcomings of particular options for implementing the Act, OMB
requests that commenters provide data and evidence to support these
conclusions.
Specific Questions
(1) Which materials, products, or categories of materials or
products should be included as ``construction materials'' for the
purposes of the Act?
(2) What should ``all manufacturing processes'' mean under Section
70912(6)(c) of the Act?
(a) Should the term ``all manufacturing processes'' have the same
meaning across all construction materials, or should the standard be
set differently for each product, material, or category of product or
material?
(b) For example, the equivalent standard for iron and steel
products is ``all manufacturing processes, from the initial melting
stage through the application of coatings,'' which does not require the
iron ore to be mined in the United States, and begins the manufacturing
process with ``initial melting.'' What should be the equivalent first
process for ``construction materials,'' and should the description be
different for lumber, glass, and other construction materials?
(c) If relevant to any construction materials, should ``final
assembly'' be considered a manufacturing process? Or should a
manufacturing process be limited to processes that alter the properties
of a material in some way? If limited to processes that alter the
properties of a material, should any particular standard apply? Should
the standard be different for lumber, glass, and other construction
materials?
(3) How should agencies distinguish ``construction materials'' from
``manufactured products'' to provide clarity on how to comply with the
Act's requirements and ensure efficient and effective administration?
(4) How should OMB take into consideration and seek to maximize the
direct and indirect jobs benefited or created in the production of
construction materials, as required by the Act?
(5) What is the current and projected capacity of United States
manufacturers to supply construction materials that meet the Act's
standards? How will this capacity be impacted by the standard provided
for ``all manufacturing processes'' under the Act? Please answer this
question for any of the following materials that you have responsive
information on: non-ferrous metals, plastic and polymer-based products
(including polyvinylchloride, composite building materials, and
polymers used in fiber optic cables), glass (including optic glass),
lumber, and drywall. Please also answer this question for any other
material, product, or category of product you identified under question
(1) above.
(6) Do you anticipate that United States manufacturers will be able
to supply construction materials that meet the Act's standards in
sufficient and reasonably available quantities and of a satisfactory
quality to all infrastructure projects covered by the Act? Will this
ability be impacted by the increased demand for United States
manufacturing? Do you foresee supply shortages or other issues for any
material? If so, what Federal policies exist that may help alleviate
the challenges you identified? Please answer this question for all
materials referenced in question (5) above.
(7) How can the Act's waiver transparency requirements and supplier
scouting programs be leveraged to identify gaps in domestic sourcing
and inform capital investment planning?
(8) How else might OMB spur and incentivize domestic manufacturing
of construction materials that meet the Act's standards?
(9) What additional considerations should OMB consider when
developing guidance and standards for construction materials?
(10) What guidelines should be considered by OMB and the FAR
Council to determine whether an end product that might be procured
under the BAA by a Federal agency has been manufactured domestically?
[[Page 23891]]
(a) What is the best way to promote a clear and consistent
understanding of the term ``manufacturing'' while accommodating the
range of manufacturing processes involved in the wide variety of
products purchased by the Federal Government?
(b) Should consideration be given to the definition of
``manufacturer'' used in SBA's regulations, as described above?
(c) Should consideration be given to holdings cited by courts or
the GAO for determining whether an end product is domestically
manufactured, such as whether substantial changes in physical character
occurred domestically, whether the article is completed in the form
required by the Government domestically, or whether the item being
procured is made suitable for its intended use, and its identity is
established, in the United States?
(d) What existing sources, in addition to those described above,
may offer relevant definitions or guidelines that could be suitable for
understanding whether an end item has been domestically manufactured in
the context of Federal procurement?
Celeste Drake,
Director, Made in America Office.
[FR Doc. 2022-08491 Filed 4-20-22; 8:45 am]
BILLING CODE 3110-01-P
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