Regulatory Alert: AAAE Supports Temporary Waiver of New Buy America Requirements for Construction Materials
May 16, 2022
AAAE filed comments on May 13 in support of the U.S. Department of Transportation's (DOT) proposed temporary waiver of new Build America, Buy America (BABA) requirements for construction materials that are used in infrastructure projects to be manufactured in the United States. 
Under the Bipartisan Infrastructure Law (BIL), Congress expanded the traditional Buy America requirements to include not just steel and manufactured goods but also “construction materials.“ DOT's temporary waiver would provide relief for airports from the new requirement and ensure that the industry has sufficient time to adjust to new rules, guidance, and compliance procedures that are still being developed. AAAE has urged DOT to ensure the waiver remains in effect until at least 180 days after the Federal Aviation Administration (FAA) updates its Buy America guidance. 
You can read AAAE's comments here. 
Background. Under FAA's long-standing Buy America statute, all steel and manufactured goods used in Airport Improvement Program (AIP) funded projects must be produced in the United States. FAA's Buy America provisions have been in effect for decades and the agency has a well-established process and guidance on how airports comply with the requirements and request waivers. Last November, Congress passed the BIL, which included the BABA Act and a new requirement for “all construction materials“ used in infrastructure projects to be manufactured in the United States. Absent a waiver, FAA is required to implement this provision into all new grant awards beginning on May 14. 
AAAE's Support for Temporary Waiver. To date, neither the Administration nor FAA have provided airports or other industries with meaningful guidance on how to comply with the new BABA requirements relating to construction materials. Recognizing the challenges, DOT has proposed a 180-day temporary public interest waiver of Buy America requirements for construction materials, which would apply to any awards that are obligated on or after May 14. 
In our supporting comments, AAAE emphasized two key points:
• First, given the ongoing uncertainty surrounding implementation of the new BABA requirements, we strongly supported the proposed temporary waiver to help ease the industry's transition to the new rules. In the absence of such a waiver, currently planned infrastructure projects would be delayed; airports would not understand how to comply with the new requirements; and neither DOT nor airports would have sufficient data to determine if construction materials can be adequately sourced domestically, especially with the ongoing supply chain challenges this country is facing.
• Second, we emphasized concerns that the proposed 180 days for the temporary waiver would be insufficient for the federal government, including the Office of Management and Budget (OMB) and FAA, to update existing guidance and for airports to come into compliance. We urged DOT to ensure the waiver remains in effect until at least 180 days after FAA issues updated Buy America guidance that explains how airports can comply with the new requirements. We also noted that this timeframe may need to be revisited and extended depending on additional comments and data that is gathered. 
What's Next? DOT will consider the more than 80 comments that were filed in response to its request for feedback on the proposal. The department is expected to adopt the temporary public interest waiver, which would provide relief to airports from the new requirements relating to construction materials. This waiver would apply to a number of grant awards that are expected to be announced by FAA in the next several months. 
 various grant programs and funds being administered by FAA, including relevant timelines, to help airports navigate the opportunities available for infrastructure funding. 
AAAE filed comments on May 13 in support of the U.S. Department of Transportation's (DOT) proposed temporary waiver of new Build America, Buy America (BABA) requirements for construction materials that are used in infrastructure projects to be manufactured in the United States. 
Under the Bipartisan Infrastructure Law (BIL), Congress expanded the traditional Buy America requirements to include not just steel and manufactured goods but also “construction materials.“ DOT's temporary waiver would provide relief for airports from the new requirement and ensure that the industry has sufficient time to adjust to new rules, guidance, and compliance procedures that are still being developed. AAAE has urged DOT to ensure the waiver remains in effect until at least 180 days after the Federal Aviation Administration (FAA) updates its Buy America guidance. 
You can read AAAE's comments here. 
Background. Under FAA's long-standing Buy America statute, all steel and manufactured goods used in Airport Improvement Program (AIP) funded projects must be produced in the United States. FAA's Buy America provisions have been in effect for decades and the agency has a well-established process and guidance on how airports comply with the requirements and request waivers. Last November, Congress passed the BIL, which included the BABA Act and a new requirement for “all construction materials“ used in infrastructure projects to be manufactured in the United States. Absent a waiver, FAA is required to implement this provision into all new grant awards beginning on May 14. 
AAAE's Support for Temporary Waiver. To date, neither the Administration nor FAA have provided airports or other industries with meaningful guidance on how to comply with the new BABA requirements relating to construction materials. Recognizing the challenges, DOT has proposed a 180-day temporary public interest waiver of Buy America requirements for construction materials, which would apply to any awards that are obligated on or after May 14. 
In our supporting comments, AAAE emphasized two key points:
• First, given the ongoing uncertainty surrounding implementation of the new BABA requirements, we strongly supported the proposed temporary waiver to help ease the industry's transition to the new rules. In the absence of such a waiver, currently planned infrastructure projects would be delayed; airports would not understand how to comply with the new requirements; and neither DOT nor airports would have sufficient data to determine if construction materials can be adequately sourced domestically, especially with the ongoing supply chain challenges this country is facing.
• Second, we emphasized concerns that the proposed 180 days for the temporary waiver would be insufficient for the federal government, including the Office of Management and Budget (OMB) and FAA, to update existing guidance and for airports to come into compliance. We urged DOT to ensure the waiver remains in effect until at least 180 days after FAA issues updated Buy America guidance that explains how airports can comply with the new requirements. We also noted that this timeframe may need to be revisited and extended depending on additional comments and data that is gathered. 
What's Next? DOT will consider the more than 80 comments that were filed in response to its request for feedback on the proposal. The department is expected to adopt the temporary public interest waiver, which would provide relief to airports from the new requirements relating to construction materials. This waiver would apply to a number of grant awards that are expected to be announced by FAA in the next several months. 
 various grant programs and funds being administered by FAA, including relevant timelines, to help airports navigate the opportunities available for infrastructure funding. 
