Regulatory Alert: AAAE Urges Secretary Buttigieg to Extend Waiver of Build America, Buy America Requirements
October 28, 2022
AAAE President and CEO Todd Hauptli sent a letter to Secretary of Transportation Pete Buttigieg urging the Department of Transportation (DOT) to delay implementation of new Build America, Buy America (BABA) Act requirements that all "construction materials" used in infrastructure projects be manufactured in the United States. The request comes as the current public interest waiver, which was issued in May, is set to expire on November 10, which means the new requirements will be incorporated into any grant agreement executed after that date
In the letter, Hauptli highlighted potential impacts to infrastructure projects if implementation of the BABA requirements occurs before the industry is prepared. He said, "We believe these requirements will lead to a more limited supply of construction materials, higher bid prices on projects, and an exacerbation of ongoing supply shortage challenges and delays that are already significant."
Hauptli also expressed frustration that neither DOT nor FAA have published any guidance specific to airports that would allow them to successfully navigate the new requirements. He explained that “there remains widespread confusion in the airport industry on how to comply with the new BABA requirements for construction materials." Hauptli continued, "Without definitive guidance, supported by the necessary research and studies on domestic sourcing capabilities, implementation of the BABA requirements will become overly burdensome, if not impossible, for the airport industry."
To avoid potentially costly disruptions to a substantial number of federally funded airport infrastructure projects, Hauptli urged DOT to extend the existing waiver of BABA requirements regarding construction materials at airports until at least 180 days after FAA issues updated guidance on the new process for complying with the BABA requirements. This, he contended, would give DOT and FAA time to complete a number of AAAE recommendations that would help ensure a smooth transition, including:
·        Conduct surveys and research on domestic sourcing capabilities for each of the materials that have been identified in preliminary guidance from the Office of Management and Budget (i.e., non-ferrous materials, plastic, glass, lumber, and drywall) before issuing any guidance to industry on how to comply with the new requirement.
·        Develop guidance for airports that explains (a) which construction materials are subject to new Buy American preference requirements, (b) how to differentiate between construction materials and manufactured products, (c) how to ensure that the “processes“ used to manufacture construction materials occurred in the United States, and (d) how they are expected to demonstrate compliance.
·        Ensure that there is a clear and simplified compliance process for verifying that all the processes used for manufacturing each construction material used in infrastructure projects occurred in the United States. This should include shifting the burden to the manufacturer of the materials to confirm or certify compliance where possible.
·        Clarify that asphalt, concrete, and cement are statutorily exempt from the BABA requirements for construction materials. At a minimum, DOT and FAA should reaffirm existing policy that Buy American preference requirements do not apply because these materials are considered “nonavailable items.“
·        Develop and share educational tools for airports and other federal grant recipients that will help their staff and contractors better understand BABA implementation requirements and guidance.
                                                         
·        Create a robust waiver request and review process to ensure that the unavailability or shortage of specific construction materials does not significantly escalate costs and/or delay projects.
Absent an extension, the new construction materials requirement will apply to any airport grant issued after that date. While we will continue to push for an extension of the existing waiver, AAAE is also urging DOT and FAA to complete and make available much-needed guidance on implementation of the new BABA requirements for the airport community, including information on how airports can easily access waiver opportunities.
AAAE President and CEO Todd Hauptli sent a letter to Secretary of Transportation Pete Buttigieg urging the Department of Transportation (DOT) to delay implementation of new Build America, Buy America (BABA) Act requirements that all "construction materials" used in infrastructure projects be manufactured in the United States. The request comes as the current public interest waiver, which was issued in May, is set to expire on November 10, which means the new requirements will be incorporated into any grant agreement executed after that date
In the letter, Hauptli highlighted potential impacts to infrastructure projects if implementation of the BABA requirements occurs before the industry is prepared. He said, "We believe these requirements will lead to a more limited supply of construction materials, higher bid prices on projects, and an exacerbation of ongoing supply shortage challenges and delays that are already significant."
Hauptli also expressed frustration that neither DOT nor FAA have published any guidance specific to airports that would allow them to successfully navigate the new requirements. He explained that “there remains widespread confusion in the airport industry on how to comply with the new BABA requirements for construction materials." Hauptli continued, "Without definitive guidance, supported by the necessary research and studies on domestic sourcing capabilities, implementation of the BABA requirements will become overly burdensome, if not impossible, for the airport industry."
To avoid potentially costly disruptions to a substantial number of federally funded airport infrastructure projects, Hauptli urged DOT to extend the existing waiver of BABA requirements regarding construction materials at airports until at least 180 days after FAA issues updated guidance on the new process for complying with the BABA requirements. This, he contended, would give DOT and FAA time to complete a number of AAAE recommendations that would help ensure a smooth transition, including:
·        Conduct surveys and research on domestic sourcing capabilities for each of the materials that have been identified in preliminary guidance from the Office of Management and Budget (i.e., non-ferrous materials, plastic, glass, lumber, and drywall) before issuing any guidance to industry on how to comply with the new requirement.
·        Develop guidance for airports that explains (a) which construction materials are subject to new Buy American preference requirements, (b) how to differentiate between construction materials and manufactured products, (c) how to ensure that the “processes“ used to manufacture construction materials occurred in the United States, and (d) how they are expected to demonstrate compliance.
·        Ensure that there is a clear and simplified compliance process for verifying that all the processes used for manufacturing each construction material used in infrastructure projects occurred in the United States. This should include shifting the burden to the manufacturer of the materials to confirm or certify compliance where possible.
·        Clarify that asphalt, concrete, and cement are statutorily exempt from the BABA requirements for construction materials. At a minimum, DOT and FAA should reaffirm existing policy that Buy American preference requirements do not apply because these materials are considered “nonavailable items.“
·        Develop and share educational tools for airports and other federal grant recipients that will help their staff and contractors better understand BABA implementation requirements and guidance.
                                                         
·        Create a robust waiver request and review process to ensure that the unavailability or shortage of specific construction materials does not significantly escalate costs and/or delay projects.
Absent an extension, the new construction materials requirement will apply to any airport grant issued after that date. While we will continue to push for an extension of the existing waiver, AAAE is also urging DOT and FAA to complete and make available much-needed guidance on implementation of the new BABA requirements for the airport community, including information on how airports can easily access waiver opportunities.
