Regulatory Alert: DOT Requests Information on New Buy America Requirements for Construction Materials; FAA Provides Update on Ongoing BIL Implementation
July 28, 2022
The U.S. Department of Transportation (DOT) published a request for information (RFI) on July 28 regarding the new Build America, Buy America (BABA) requirement that “all construction materials“ used in infrastructure projects be manufactured in the United States. The new requirement was an expansion of traditional Buy America preferences and included in the Bipartisan Infrastructure Law (BIL) that was passed last November. In the RFI, DOT is asking for information from stakeholders on how the new BABA provisions should be interpreted and implemented; the availability of commonly used construction materials in the United States; and the new rule's potential impacts to federally funded projects. 
AAAE will be working closely with airport members to gather information and respond before the August 12, 2022, comment deadline. The goal will be to demonstrate the need for: (1) an extension of the temporary waiver of the new requirement that remains in effect—until at least 180 days after FAA updates its current Buy America guidance; (2) clear guidance on how to ensure construction materials used in projects are produced domestically considering current sourcing capabilities; and (3) simplified procedures for certifying such compliance. 
AAAE hosted a discussion, through its Finance & Administration Committee, with Robin Hunt, who is leading the Federal Aviation Administration's (FAA) BIL Implementation Team within the Office of Airports. Most significantly, FAA indicated that the notice of funding opportunity (NOFO) for fiscal year 2023 (FY23) Airport Terminal Program (ATP) discretionary grants will be released in August or September, triggering a 30-day window for airports to apply. FAA's goal is to announce FY23 ATP grants by the end of 2022. A summary of FAA's ongoing implementation of BIL is provided below. You can view the FAA's BIL presentation slides here. 
DOT's RFI on Construction Materials Used in Infrastructure Projects
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. Under the BIL, Congress expanded the traditional rules and required that “all construction materials“ used in infrastructure projects be manufactured in the United States. In May, DOT issued a temporary public interest waiver of the new BABA requirements for construction materials. The waiver remains in effect and applies to any grants that are awarded to airports and obligated between May 14 and November 10, 2022. 
Summary of DOT's RFI. In the notice and request, DOT indicated that the department is developing guidance for federal grant recipients, including airports, on how to comply with the new requirement regarding construction materials. To support their work and gather more information on domestic sourcing capabilities, DOT asked 16 specific questions of stakeholders and the public, focusing on four key areas: 
• The process and procedures for certifying that any construction materials used in a project are domestically sourced in accordance with the requirement;
• How to define the appropriate scope of “construction materials“ that must be manufactured in the United States;
• The types of materials that are not produced in sufficient enough quantities or of sufficient quality to be domestically sourced, including any materials that may be unavailable due to ongoing supply constraints; and
• The potential impacts on DOT/FAA-funded projects, administrative burdens, or unnecessary complexities that may result due to compliance with the new BABA requirements.
DOT advised that stakeholders “should not expect that DOT will extend the existing temporary waiver beyond November 10, 2022.“
AAAE's Position. AAAE, in response to requests from DOT and the Office of Management and Budget, has emphasized to both agencies that the airport industry needs sufficient time to transition to the new rules. This includes ensuring compliance does not begin until at least 180 days after FAA releases guidance on how airports must comply with the new BABA provisions. We also warned that without a sufficient transition period, currently planned infrastructure projects could be delayed and cause both the federal government and grant recipients to incur substantial and unnecessary costs. Additional information can be found in our May 19 Regulatory Alert. 
What's Next? DOT has requested feedback no later than Friday, August 12. AAAE believes the industry will likely need more time to respond to the questions asked by the department and is considering filing a request for an extension. In the meantime, AAAE will be working with its members to gather data and respond to DOT's request, with an emphasis on urging the department to extend the waiver period to allow for a smoother transition to the new rules. 
FAA Updates on Ongoing BIL Implementation
Based on our discussion with the FAA's BIL Implementation Team, we wanted to share updates regarding the status of ongoing implementation of the three BIL grant programs that have already begun to invest $20 billion to upgrade and improve airport and air traffic infrastructure.
Airport Infrastructure Grant (AIG) Program. Under the AIG Program, FAA is making $15 billion in formula grants ($3 billion per year) for airports to fund any eligible project under the AIP or Passenger Facility Charge (PFC) Program. In April, FAA began allowing airports to apply to use FY22 AIG allocated funds for specific projects. FAA reiterated that the AIG process follows the same process that airports use to apply for AIP entitlement grants. So far, FAA has issued over $130 million in AIG grants in FY22. This includes over $87 million in grants that were released yesterday. You can view all the AIG grants that have been made on FAA's BIL website here. 
Airport Terminal Program (ATP). Under the ATP, FAA will be issuing $5 billion in competitive grants ($1 billion per year) to fund projects for terminal development, on-airport rail access, or relocating, repairing, or improving an airport-owned air traffic control (ATC) facility. For FY22, airports submitted over 650 project applications requesting a total of $14 billion. Earlier this month, FAA announced about $968 million in FY22 ATP grants for 91 projects at 85 airports. FAA's presentation slides provide further detail about how many airports in each hub size requested funding and the total amount. 
For FY23, FAA noted that the agency expects to release a NOFO in August or September, which would trigger a 30-day period for airports to submit projects for potential funding. FAA's goal is to announce projects for FY23 by the end of the calendar year. FAA indicated to our members during the discussion that the FY23 application process will be very similar to the FY22 process, including use of the same application form. 
Federal Contract Tower (FCT) Competitive Grant Program. Under the FCT Competitive Grant Program, FAA will be issuing $100 million in discretionary grants ($20 million per year) to fund projects that repair, improve, or replace an airport-owned FCT ATC tower. The window to apply for an FY22 grant under this program closed on May 16. FAA reportedly received 97 total applications requesting $364 million in projects. The agency indicated that they hope to announce FY22 projects sometime within the next week or two. 
The U.S. Department of Transportation (DOT) published a request for information (RFI) on July 28 regarding the new Build America, Buy America (BABA) requirement that “all construction materials“ used in infrastructure projects be manufactured in the United States. The new requirement was an expansion of traditional Buy America preferences and included in the Bipartisan Infrastructure Law (BIL) that was passed last November. In the RFI, DOT is asking for information from stakeholders on how the new BABA provisions should be interpreted and implemented; the availability of commonly used construction materials in the United States; and the new rule's potential impacts to federally funded projects. 
AAAE will be working closely with airport members to gather information and respond before the August 12, 2022, comment deadline. The goal will be to demonstrate the need for: (1) an extension of the temporary waiver of the new requirement that remains in effect—until at least 180 days after FAA updates its current Buy America guidance; (2) clear guidance on how to ensure construction materials used in projects are produced domestically considering current sourcing capabilities; and (3) simplified procedures for certifying such compliance. 
AAAE hosted a discussion, through its Finance & Administration Committee, with Robin Hunt, who is leading the Federal Aviation Administration's (FAA) BIL Implementation Team within the Office of Airports. Most significantly, FAA indicated that the notice of funding opportunity (NOFO) for fiscal year 2023 (FY23) Airport Terminal Program (ATP) discretionary grants will be released in August or September, triggering a 30-day window for airports to apply. FAA's goal is to announce FY23 ATP grants by the end of 2022. A summary of FAA's ongoing implementation of BIL is provided below. You can view the FAA's BIL presentation slides here. 
DOT's RFI on Construction Materials Used in Infrastructure Projects
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. Under the BIL, Congress expanded the traditional rules and required that “all construction materials“ used in infrastructure projects be manufactured in the United States. In May, DOT issued a temporary public interest waiver of the new BABA requirements for construction materials. The waiver remains in effect and applies to any grants that are awarded to airports and obligated between May 14 and November 10, 2022. 
Summary of DOT's RFI. In the notice and request, DOT indicated that the department is developing guidance for federal grant recipients, including airports, on how to comply with the new requirement regarding construction materials. To support their work and gather more information on domestic sourcing capabilities, DOT asked 16 specific questions of stakeholders and the public, focusing on four key areas: 
• The process and procedures for certifying that any construction materials used in a project are domestically sourced in accordance with the requirement;
• How to define the appropriate scope of “construction materials“ that must be manufactured in the United States;
• The types of materials that are not produced in sufficient enough quantities or of sufficient quality to be domestically sourced, including any materials that may be unavailable due to ongoing supply constraints; and
• The potential impacts on DOT/FAA-funded projects, administrative burdens, or unnecessary complexities that may result due to compliance with the new BABA requirements.
DOT advised that stakeholders “should not expect that DOT will extend the existing temporary waiver beyond November 10, 2022.“
AAAE's Position. AAAE, in response to requests from DOT and the Office of Management and Budget, has emphasized to both agencies that the airport industry needs sufficient time to transition to the new rules. This includes ensuring compliance does not begin until at least 180 days after FAA releases guidance on how airports must comply with the new BABA provisions. We also warned that without a sufficient transition period, currently planned infrastructure projects could be delayed and cause both the federal government and grant recipients to incur substantial and unnecessary costs. Additional information can be found in our May 19 Regulatory Alert. 
What's Next? DOT has requested feedback no later than Friday, August 12. AAAE believes the industry will likely need more time to respond to the questions asked by the department and is considering filing a request for an extension. In the meantime, AAAE will be working with its members to gather data and respond to DOT's request, with an emphasis on urging the department to extend the waiver period to allow for a smoother transition to the new rules. 
FAA Updates on Ongoing BIL Implementation
Based on our discussion with the FAA's BIL Implementation Team, we wanted to share updates regarding the status of ongoing implementation of the three BIL grant programs that have already begun to invest $20 billion to upgrade and improve airport and air traffic infrastructure.
Airport Infrastructure Grant (AIG) Program. Under the AIG Program, FAA is making $15 billion in formula grants ($3 billion per year) for airports to fund any eligible project under the AIP or Passenger Facility Charge (PFC) Program. In April, FAA began allowing airports to apply to use FY22 AIG allocated funds for specific projects. FAA reiterated that the AIG process follows the same process that airports use to apply for AIP entitlement grants. So far, FAA has issued over $130 million in AIG grants in FY22. This includes over $87 million in grants that were released yesterday. You can view all the AIG grants that have been made on FAA's BIL website here. 
Airport Terminal Program (ATP). Under the ATP, FAA will be issuing $5 billion in competitive grants ($1 billion per year) to fund projects for terminal development, on-airport rail access, or relocating, repairing, or improving an airport-owned air traffic control (ATC) facility. For FY22, airports submitted over 650 project applications requesting a total of $14 billion. Earlier this month, FAA announced about $968 million in FY22 ATP grants for 91 projects at 85 airports. FAA's presentation slides provide further detail about how many airports in each hub size requested funding and the total amount. 
For FY23, FAA noted that the agency expects to release a NOFO in August or September, which would trigger a 30-day period for airports to submit projects for potential funding. FAA's goal is to announce projects for FY23 by the end of the calendar year. FAA indicated to our members during the discussion that the FY23 application process will be very similar to the FY22 process, including use of the same application form. 
Federal Contract Tower (FCT) Competitive Grant Program. Under the FCT Competitive Grant Program, FAA will be issuing $100 million in discretionary grants ($20 million per year) to fund projects that repair, improve, or replace an airport-owned FCT ATC tower. The window to apply for an FY22 grant under this program closed on May 16. FAA reportedly received 97 total applications requesting $364 million in projects. The agency indicated that they hope to announce FY22 projects sometime within the next week or two. 
