Regulatory Alert: AAAE Urges DOT to Extend Temporary Waiver and Provides Recommendations for Transitioning to New Buy American Requirements
August 19, 2022
On August 18, AAAE filed comments in response to the U.S. Department of Transportation's (DOT) request for information (RFI) on the new Build America, Buy America (BABA) Act requirement that all construction materials used in infrastructure projects be produced in the United States. The new requirement was an expansion of traditional Buy America preferences and a part of the Bipartisan Infrastructure Law (BIL) that was passed last November. The purpose of the RFI was to solicit feedback on how to implement the new requirement, which is set to take effect on November 10 when the existing waiver expires.
In our comments, we strongly urged DOT to extend the existing waiver and ensure that it remains in effect until at least 180 days after the Federal Aviation Administration (FAA) issues guidance on how airports are expected to comply with the new construction materials requirement. In addition, we highlighted potential impacts to infrastructure projects if implementation occurs before the industry is prepared; the need for clearer guidance and clarification that cement, concrete, and asphalt are not subject to Buy American preference requirements; and relayed member concerns over the challenge of verifying that all construction materials used in projects were manufactured in the United States. 
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. 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 AAAE's Response to DOT. On July 28, DOT released an RFI on the new BABA requirement, requesting information on how the new 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. Based on member feedback, AAAE recommended DOT complete the following to ensure a smooth transition to the new rules:
• Extend the existing temporary waiver and ensure that it remains in effect until at least 180 days after FAA issues guidance on how airports are expected to comply with the new construction materials requirement. 
• Conduct surveys and research on domestic sourcing capabilities for each of the construction materials that have been identified in preliminary guidance (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 and other grant recipients 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 with the requirements.
• 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.
• 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 these three materials are considered “nonavailable items“ and that Buy American preference requirements do not apply.
• 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.
What's Next? DOT will consider more than 100 comments that were filed in response to its request for feedback. The department emphasized in the RFI that industry should not expect an extension of the temporary waiver beyond November 10, 2022. Absent an extension, the new construction materials requirement will apply to any airport grant issued after that date. However, in the meantime, we will be continuing to push for clear guidance from DOT and FAA and an extension of the existing waiver.
 
On August 18, AAAE filed comments in response to the U.S. Department of Transportation's (DOT) request for information (RFI) on the new Build America, Buy America (BABA) Act requirement that all construction materials used in infrastructure projects be produced in the United States. The new requirement was an expansion of traditional Buy America preferences and a part of the Bipartisan Infrastructure Law (BIL) that was passed last November. The purpose of the RFI was to solicit feedback on how to implement the new requirement, which is set to take effect on November 10 when the existing waiver expires.
In our comments, we strongly urged DOT to extend the existing waiver and ensure that it remains in effect until at least 180 days after the Federal Aviation Administration (FAA) issues guidance on how airports are expected to comply with the new construction materials requirement. In addition, we highlighted potential impacts to infrastructure projects if implementation occurs before the industry is prepared; the need for clearer guidance and clarification that cement, concrete, and asphalt are not subject to Buy American preference requirements; and relayed member concerns over the challenge of verifying that all construction materials used in projects were manufactured in the United States. 
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. 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 AAAE's Response to DOT. On July 28, DOT released an RFI on the new BABA requirement, requesting information on how the new 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. Based on member feedback, AAAE recommended DOT complete the following to ensure a smooth transition to the new rules:
• Extend the existing temporary waiver and ensure that it remains in effect until at least 180 days after FAA issues guidance on how airports are expected to comply with the new construction materials requirement. 
• Conduct surveys and research on domestic sourcing capabilities for each of the construction materials that have been identified in preliminary guidance (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 and other grant recipients 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 with the requirements.
• 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.
• 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 these three materials are considered “nonavailable items“ and that Buy American preference requirements do not apply.
• 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.
What's Next? DOT will consider more than 100 comments that were filed in response to its request for feedback. The department emphasized in the RFI that industry should not expect an extension of the temporary waiver beyond November 10, 2022. Absent an extension, the new construction materials requirement will apply to any airport grant issued after that date. However, in the meantime, we will be continuing to push for clear guidance from DOT and FAA and an extension of the existing waiver.
 
