Notice2022-16151
Construction Materials Used in Federal Financial Assistance Projects for Transportation Infrastructure in the United States Under the Build America, Buy America Act; Request for Information
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Published
July 28, 2022
Issuing agencies
Transportation Department
Abstract
The Build America, Buy America Act (BABA), enacted as part of the Bipartisan Infrastructure Law (BIL) on November 15, 2021, requires iron, steel, manufactured products, and construction materials used in infrastructure projects funded by Federal financial assistance to be produced in the United States. DOT is seeking input on the requirement as applied to construction materials: how the requirement should be interpreted and implemented, the present availability of construction materials produced in the United States that are commonly used in transportation infrastructure projects, and the potential impacts to DOT-funded projects.
Full Text
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<title>Federal Register, Volume 87 Issue 144 (Thursday, July 28, 2022)</title>
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[Federal Register Volume 87, Number 144 (Thursday, July 28, 2022)]
[Notices]
[Pages 45396-45399]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-16151]
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DEPARTMENT OF TRANSPORTATION
[Docket No. DOT-OST-2022-0047]
Construction Materials Used in Federal Financial Assistance
Projects for Transportation Infrastructure in the United States Under
the Build America, Buy America Act; Request for Information
AGENCY: Department of Transportation (DOT).
ACTION: Notice; request for information.
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SUMMARY: The Build America, Buy America Act (BABA), enacted as part of
the Bipartisan Infrastructure Law (BIL) on November 15, 2021, requires
iron, steel, manufactured products, and construction materials used in
infrastructure projects funded by Federal financial assistance to be
produced in the United States. DOT is seeking input on the requirement
as applied to construction materials: how the requirement should be
interpreted and implemented, the present availability of construction
materials produced in the United States that are commonly used in
transportation infrastructure projects, and the potential impacts to
DOT-funded projects.
DATES: Written submissions must be received by August 12, 2022. DOT
will consider comments received after this date to the extent
practicable.
ADDRESSES: Please submit any written comments to Docket Number DOT-OST-
2022-0047 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
``Department of Transportation (DOT)'' from the agency menu to submit
or view public comments. Note that, except as provided below, all
submissions received, including any personal information provided, will
be posted without change and will be available to the public on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. You may review DOT's complete Privacy Act
Statement in the Federal Register published on April 11, 2000 (65 FR
19477) or at <a href="https://www.transportation.gov/privacy">https://www.transportation.gov/privacy</a>.
FOR FURTHER INFORMATION CONTACT: For questions about this RFI, please
contact Darren Timothy, Office of the Assistant Secretary for
Transportation Policy, at <a href="/cdn-cgi/l/email-protection#b5d1d4c7c7d0db9bc1dcd8dac1ddccf5d1dac19bd2dac3"><span class="__cf_email__" data-cfemail="4226233030272c6c362b2f2d362a3b02262d366c252d34">[email protected]</span></a> or (202) 366-4051;
Jason Luebbers, Federal Transit Administration, at
<a href="/cdn-cgi/l/email-protection#9cf6fdeff3f2b2f0e9f9fefef9eeefdcf8f3e8b2fbf3ea"><span class="__cf_email__" data-cfemail="345e55475b5a1a584151565651464774505b401a535b42">[email protected]</span></a> or (202) 366-8864; Lauren Gill, Maritime
Administration, at <a href="/cdn-cgi/l/email-protection#462a273334232868212f2a2a0622293268212930"><span class="__cf_email__" data-cfemail="f599948087909bdb929c9999b5919a81db929a83">[email protected]</span></a> or (202) 366-2150; John Johnson,
Federal Railroad Administration, at <a href="/cdn-cgi/l/email-protection#1e7471767030747176706d71705e7a716a30797168"><span class="__cf_email__" data-cfemail="117b7e797f3f7b7e797f627e7f51757e653f767e67">[email protected]</span></a> or (202) 493-
0078; Patrick Smith, Federal Highway Administration, at
<a href="/cdn-cgi/l/email-protection#f5859481879c969edb96db86989c819db5919a81db929a83"><span class="__cf_email__" data-cfemail="becedfcaccd7ddd590dd90cdd3d7cad6fedad1ca90d9d1c8">[email protected]</span></a> or (202) 366-1345; or Carlos Fields, Federal
Aviation Administration, at <a href="/cdn-cgi/l/email-protection#05666477696a762b636c60696176456364642b626a73"><span class="__cf_email__" data-cfemail="2c4f4d5e40435f024a454940485f6c4a4d4d024b435a">[email protected]</span></a> or (202) 267-8826.
SUPPLEMENTARY INFORMATION:
Construction Materials Procured Under Department of Transportation
Programs
On November 15, 2021, President Biden signed into law the
Bipartisan Infrastructure Law (BIL), enacted as the Infrastructure
Investment and Jobs Act, Public Law 117-58, which includes the Build
America, Buy America Act (BABA). Public Law 117-58, div. G Sec. Sec.
70901-52. BABA's requirements for the use of iron, steel, manufactured
products, and construction materials produced in the United States will
bolster America's industrial base, protect national security, and
support good-paying jobs.
Consistent with Executive Order 14005, Ensuring the Future Is Made
in All of America by All of America's Workers (E.O. 14005), BABA
affirms the Biden-Harris 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 offered in,
the United States.'' (E.O. 14005). Under BABA, 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.\1\
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\1\ Under section 70917(a) of the BIL, the BABA requirements
apply to financial assistance programs for infrastructure only to
the extent that a domestic content procurement preference does not
already apply to iron, steel, manufactured products, and
construction materials. Thus, the BABA requirement for construction
materials supplements the existing DOT Buy America requirements for
steel, iron, and manufactured products.
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One of the new Buy America preferences included under Section 70914
of the Act is for construction materials. As of May 14, 2022, each
covered Federal agency must ensure that all manufacturing processes for
construction materials used in Federally assisted infrastructure
projects occur in the United States. None of the specific statutes that
apply particular Buy America \2\ requirements to the Federal financial
assistance programs administered by DOT's Operating Administrations
(OAs), including 49 U.S.C. 50101 (FAA); 23 U.S.C. 313 (FHWA); 49 U.S.C.
22905(a) (FRA); 49 U.S.C. 5323(j) (FTA); and 46 U.S.C. 54101(d)(2)
(MARAD), specifically cover construction materials, other than to the
extent that such materials would already be considered iron, steel, or
manufactured products.
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\2\ In this notice, references to ``Buy America'' include
domestic preference laws called ``Buy American'' that apply to DOT
financial assistance programs.
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Waivers are authorized under BABA where (1) applying the Buy
America requirement would be inconsistent with the public interest; (2)
where the iron, steel, manufactured product, 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. BIL
Sec. 70914(b). On May 19, 2022, DOT issued a temporary waiver of the
construction materials requirement for 180 days, from May 14 until
November 10, 2022. 87 FR 31931. Federal awards that DOT makes on or
after November 10 will be subject to the
[[Page 45397]]
requirement that construction materials used in the project are
produced in the United States.
In the waiver notice, DOT stated that ``public interest waivers
should be used sparingly'' and that stakeholders must rapidly adopt
procedures during the waiver period to ensure compliance with the new
requirement after expiration of the waiver. During the waiver period,
DOT continues its engagement to help facilitate the creation of robust
enforcement and compliance mechanisms and to rapidly encourage domestic
sourcing of construction materials for transportation infrastructure
improvements.
Interim Standards for Construction Materials
Under BABA, construction materials are ``produced in the United
States'' if ``all manufacturing processes'' for the materials occurred
in the United States. BIL Sec. 70912. BABA directs the U.S. Office of
Management and Budget's Made in America Office (MIAO) to issue
standards that define the term ``all manufacturing processes'' as it
applies to construction materials produced in the United States. On
April 18, 2022, OMB issued memorandum M-22-11, ``Initial Implementation
Guidance on Application of Buy America Preference in Federal Financial
Assistance Programs for Infrastructure'' (OMB Initial Implementation
Guidance). Section VIII of the OMB Initial Implementation Guidance
states: ``Pending MIAO's issuance of final standards on construction
materials . . . agencies should consider `all manufacturing processes'
for construction materials to mean the final manufacturing process and
the immediately preceding manufacturing stage for the construction
material.'' OMB Initial Implementation Guidance at 14.
The OMB Initial Implementation Guidance also contains a preliminary
list of construction materials that includes:
[A]n 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:
<bullet> non-ferrous metals;
<bullet> plastic and polymer-based products (including
polyvinylchloride, composite building materials, and polymers used in
fiber optic cables);
<bullet> glass (including optic glass);
<bullet> lumber; or
<bullet> drywall.
OMB Initial Implementation Guidance at 13-14. On April 21, 2022,
OMB also issued a request for information to gather public input on its
development of standards for construction materials. 87 FR 23888. The
OMB RFI states that it ``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.''
The OMB Initial Implementation Guidance additionally indicates
that:
[I]tems that consist of two or more of the listed materials that
have been combined together through a manufacturing process, and items
that include at least one of the listed materials combined with a
material that is not listed through a manufacturing process, should be
treated as manufactured products, rather than as construction
materials. For example, a plastic framed sliding window should be
treated as a manufactured product while plate glass should be treated
as a construction material.
OMB Initial Implementation Guidance at 14. The OMB Initial
Implementation Guidance also states that an article, material, or
supply should be classified into only one of the following categories:
(1) iron or steel; (2) a manufactured product; or (3) a construction
material; an article, material, or supply should not be considered to
fall into multiple categories. Id. at 6.
Request for Information
In the May 19 final waiver notice, DOT stated that it ``continues
to encourage suppliers and other stakeholders to inform DOT of any
procedures that may be developed or be in place to certify the
compliance of construction materials with the domestic preference
requirement in the Act. That information helps DOT rapidly encourage
domestic sourcing and potentially shorten the effective period or
narrow the applicability of the transitional waiver. The Department
also encourages supplier and other stakeholders to identify categories
of construction materials that currently have sufficient domestic
availability to support DOT-assisted infrastructure projects, to assist
contractors and project sponsors in incorporating compliant products in
their projects and to help the Department focus its activities to
benefit domestic manufacturers.''
To assist in gathering this information, DOT seeks input from the
public, including DOT's project sponsors, their contractors and
offerors, manufacturers, labor unions, transportation and trade
associations, and other interested parties on implementing the new
construction materials requirement. DOT seeks information in several
categories related to identifying and categorizing articles as
construction materials for transportation infrastructure projects;
establishing procedures for certifying the origin of construction
materials; and determining which construction materials commonly used
in transportation infrastructure projects are or are not produced in
the United States in sufficient quantity and quality.
This RFI is intended to assist DOT in implementing and ensuring
compliance with OMB standards. Responses to this RFI will further the
goals and objectives of BABA and E.O. 14005 by providing information to
assist the Department in implementing the construction materials
requirement for transportation infrastructure projects to maximize the
use of construction materials produced in the United States while
ensuring the efficient and effective delivery of projects. The type of
feedback that would be especially useful includes information on the
impact of the construction materials requirement on DOT-funded
projects, as well as input and recommendations on an effective
compliance certification process for construction materials.
Commenters should identify any administrative burdens, program
requirements, or unnecessary complexity as they relate to the BABA
construction materials requirement that may impose unjustified barriers
to transportation project delivery under DOT-funded assistance programs
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 objectives
of BABA for DOT-funded projects and the policies stated in section 2 of
E.O. 14005. Additionally, where applicable, please provide citations
and sources that
[[Page 45398]]
support your recommendations. All information submitted will assist DOT
in determining the extent to which additional guidance or other actions
are necessary to implement the construction materials requirement.
However, stakeholders should not expect that DOT will extend the
existing temporary waiver beyond November 10, 2022.
If commenters identify benefits, costs, burdens, or shortcomings of
particular options for implementing the BABA construction materials
requirement, commenters should provide data and evidence to support
these conclusions.
Specific Questions
DOT is providing the following questions to prompt feedback. DOT
encourages public comment on any or all of these questions, and also
seeks any other information commenters believe is relevant. Except
where noted, the questions below are intended to apply to all financial
assistance programs for transportation infrastructure are administered
by DOT's OAs. However, the Department also welcomes feedback that may
be tied to specific programs and agency requirements.
(1) In addition to those construction materials identified by OMB,
are there specific materials, products, or categories of materials or
products that are commonly used in DOT-funded projects that should be
included as ``construction materials'' for the purpose of BABA
implementation?
(2) Are there materials used in DOT-funded projects that do not
clearly fit in any one of the three categories: steel and iron;
manufactured products; or construction materials? How should DOT assign
them to one of these statutory categories?
(3) Are there items that DOT agencies currently treat as
manufactured products that should instead, under the OMB Initial
Implementation Guidance, be treated as construction materials?
(4) Based on the definition of ``all manufacturing processes'' in
the OMB Initial Implementation Guidance, what do you consider ``the
final manufacturing process'' and the ``immediately preceding
manufacturing stage'' for common goods used in DOT-funded projects in
each category of construction material listed in the OMB Initial
Implementation Guidance or any other category you identify in response
to Question 1 above?
i. Non-ferrous metals
ii. Plastic and Polymer based Products
iii. Glass
iv. Lumber
v. Drywall
vi. Other (please specify)
(5) Are the final manufacturing process and the immediately
preceding manufacturing stage different for different types of products
made from similar materials (e.g., Polyvinyl Chloride (PVC) or High-
Density Polyethylene (HDPE) pipe vs. PVC or HDPE lumber)?
(6) Certain DOT OAs have long provided definitions of
``manufacturing processes'' in their implementing regulations for Buy
America requirements. For example, FTA's regulation at 49 CFR 661.3,
which it applies to manufactured products, states: ``[T]he application
of processes to alter the form or function of materials or of elements
of the product in a manner adding value and transforming those
materials or elements so that they represent a new end product
functionally different from that which would result from mere assembly
of the elements or materials.'' FHWA's regulation for steel and iron
materials at 23 CFR 635.410(b)(1) applies to all ``manufacturing
processes, including application of a coating, for these materials must
occur in the United States. Coating includes all processes which
protect or enhance the value of the material to which the coating is
applied.'' Should the same (or a similar) definition of a manufacturing
process apply to the final manufacturing process and the immediately
preceding manufacturing stage for construction materials commonly used
in DOT-funded projects? If not, why not, and is there another standard
for manufacturing processes that might be more appropriate to apply to
construction materials?
(7) Are there some items in OMB's list of construction materials
that typically are used in DOT-funded projects only after they have
been combined into a manufactured product? For example, is glass
regularly used by itself as a construction material, or does it usually
arrive at a project already incorporated with other materials as a
manufactured product?
(8) FTA already has an established procedure for bidders or
offerors to certify the origin of steel and iron and manufactured
products in its implementing regulation at 49 CFR 661.6. Should FTA
require the same procedure to assure the origin of construction
materials for FTA-funded projects? If not, what should FTA do
differently?
(9) Under FHWA-funded programs, State DOTs are responsible for Buy
America compliance, per 23 CFR 635.410(d). Bidders are required to
comply with the project specifications, including Federal-aid projects
with Buy America requirements. Most State DOTs require certifications/
Step-certifications from bidders/contractors/suppliers to ensure
compliance. Should FHWA continue to follow this process for certifying
construction materials? If not, what should FHWA do differently?
(10) A commenter on DOT's proposed temporary Buy America waiver for
construction materials stated that ``the ability to certify materials
will grow over time, so there should be a good faith certification
process that can be refined over time.'' What would such a ``good faith
certification process'' that can be implemented in the near term (i.e.,
prior to the expiration of the temporary waiver on November 10, 2022)
look like? What steps would be required to refine those processes over
time?
(11) Is the standard in the OMB Initial Implementation Guidance
sufficiently clear to enable a bidder or offeror for a DOT-funded
project to certify the construction materials to be used in the project
are produced in the United States? If not, what further clarification
is needed?
(12) Are there construction materials commonly used in DOT-funded
projects for which suppliers or manufacturers cannot readily determine
or trace the country of origin of the final manufacturing process and
the immediately preceding manufacturing stage? Are there records or
documentation already in use that could serve as evidence of the origin
of these to manufacturing processes (e.g., country of origin
documentation, mill markings, quality control tracking)?
(13) Are there any construction materials commonly used in DOT-
funded projects that are known not to be produced in the United States
based on OMB's final manufacturing process and the immediately
preceding manufacturing stage standard, or are known not to be produced
in sufficient quantity or of satisfactory quality? What is the basis
for that knowledge?
(14) Which construction materials commonly used in DOT-funded
projects currently are produced in the United States in sufficient and
reasonably available amount and of satisfactory quality? Please feel
free to provide any additional information on how production of these
construction materials in the United States supports the regional or
local economy or workforce.
(15) Are there construction materials commonly used in DOT-funded
projects that are produced in the United States but subject to supply
constraints? Please be specific regarding lead times or delays that
will be experienced on DOT-
[[Page 45399]]
funded projects as a result of a specific construction material supply
constraint. Is the constraint on domestic supply a recent phenomenon
(i.e., beginning in 2020 or later), or is it a longstanding market
condition?
(16) Are there construction materials commonly used in DOT-funded
projects that previously were not produced in the United States but are
currently produced in the United States or are in the process of
``onshoring'' as a result of recent statutory, regulatory, or market
changes?
Confidential Business Information
Confidential Business Information (CBI) is commercial or financial
information that is both customarily and actually treated as private by
its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552),
CBI is exempt from public disclosure. If your comments responsive to
this RFI contain commercial or financial information that is
customarily treated as private, that you actually treat as private, and
that is relevant or responsive to this RFI, it is important that you
clearly designate the submitted comments as CBI. You may ask DOT to
give confidential treatment to information you give to the Department
by taking the following steps: (1) Mark each page of the original
document submission containing CBI as ``Confidential''; (2) send DOT,
along with the original document, a second copy of the original
document with the CBI deleted; and (3) explain why the information you
are submitting is CBI. Unless you are notified otherwise, DOT will
treat such marked submissions as confidential under the FOIA, and they
will not be placed in the public docket of this RFI. Submissions
containing CBI should be sent to Darren Timothy, Office of the
Assistant Secretary for Transportation Policy, 1200 New Jersey Avenue
SE, OST P-20, Washington, DC 20590. Any comment submissions that the
DOT receives that are not specifically designated as CBI will be placed
in the public docket for this matter.
Issued in Washington, DC, on July 22, 2022.
Polly E. Trottenberg,
Deputy Secretary.
[FR Doc. 2022-16151 Filed 7-27-22; 8:45 am]
BILLING CODE 4910-9X-P
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