[Federal Register Volume 87, Number 144 (Thursday, July 28, 2022)]
[Notices]
[Pages 45396-45399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 
https://regulations.gov. Go to https://regulations.gov 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 https://www.regulations.gov. You may review DOT's complete Privacy Act 
Statement in the Federal Register published on April 11, 2000 (65 FR 
19477) or at https://www.transportation.gov/privacy.

FOR FURTHER INFORMATION CONTACT: For questions about this RFI, please 
contact Darren Timothy, Office of the Assistant Secretary for 
Transportation Policy, at [email protected] or (202) 366-4051; 
Jason Luebbers, Federal Transit Administration, at 
[email protected] or (202) 366-8864; Lauren Gill, Maritime 
Administration, at [email protected] or (202) 366-2150; John Johnson, 
Federal Railroad Administration, at [email protected] or (202) 493-
0078; Patrick Smith, Federal Highway Administration, at 
[email protected] or (202) 366-1345; or Carlos Fields, Federal 
Aviation Administration, at [email protected] 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:
     non-ferrous metals;
     plastic and polymer-based products (including 
polyvinylchloride, composite building materials, and polymers used in 
fiber optic cables);
     glass (including optic glass);
     lumber; or
     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


