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May 25, 2022 9:46 AM, EDT

DOT Issues 180-Day Waiver for Some ‘Buy America’ Materials

Made in USA stickerBrett_Hondow/Getty Images

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The Department of Transportation has issued a notice establishing a 180-day temporary waiver for the bipartisan infrastructure law’s “made in America” requirements for using certain construction materials.

“In order to deliver projects and meaningful results while ensuring robust adoption of Buy America standards, the department is establishing a temporary public interest waiver for construction materials for a period of 180 days, expiring on Nov. 10,” said the announcement May 24. “DOT is establishing this transitional waiver to prepare for compliance with the new Made in America standards for construction materials.”

DOT said that during the waiver time period, it expects states, industry and other partners to begin developing procedures to document compliance. “DOT will continue its engagement through the waiver period to help facilitate the creation of robust enforcement and compliance mechanisms and to rapidly encourage domestic sourcing of construction materials for transportation infrastructure improvements,” the notice said.

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DOT said the waiver stems from requirements established by the bipartisan infrastructure law that seeks to maximize the use of American-made products and materials in all federally funded projects. Specifically, it expands the coverage and application of Buy America preferences in federal financial assistance programs for infrastructure, according to DOT.

DOT said it has heard from stakeholders regarding concerns about the implementation of Buy America requirements for construction materials, specifically how recipients of federal funds will need to require contractors to source Buy America-compliant construction materials — and how industry will certify and demonstrate compliance.

“The department recognizes both the importance of ensuring Buy America-compliant construction materials and the need to implement the requirement in a way that is not overly burdensome,” the agency said.

Brian Turmail

Turmail

Brian Turmail, vice president of public affairs and strategic initiatives at Associated General Contractors of America, said the Buy America provision has the potential to significantly impede any range of transportation infrastructure projects from moving forward.

“More recently, we’ve seen a lot of challenges more regional in nature with some of the materials even being supplied domestically,” Turmail said.

“The supply chain is so fragile right now that it’s easy to envision a scenario that something a year ago that was easily sourced domestically is no longer sourced domestically or is impossible to achieve within the project timeline,” Turmail added. “It’s going to discourage agencies from asking for a waiver. The White House set itself up to really be reluctant to give out waivers given how high-profile and public each of these waiver requests is being set up to be.”

The Buy America law included preliminary guidance for construction for certain materials — other than an item of primarily iron or steel — ranging from aggregates such as stone, sand or gravel, to aggregate binding agents or additives that consist primarily of non-ferrous metals; plastic and polymer-based products, glass, lumber or drywall.

The Implementation Guidance notes that a “waiver in the public interest may be appropriate where an agency determines that other important policy goals cannot be achieved consistent with the Buy America requirements established by the Act.”

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“Because construction materials have not previously been subject to Made in America rules as have iron and steel, there is a need to gather data on domestic sourcing capacity to inform stronger standards,” the notice said. “For example, while the exact impact on highway project construction is unknown, the department believes that it could be significant.”

DOT said it received 83 separate comments from a wide array of stakeholders in response to an April 28 notice published on its website seeking comment on whether to use its authority to provide a temporary waiver.

“The vast majority of commenters supported DOT’s proposal to issue a temporary waiver for construction materials,” DOT said. “Comments opposing the waiver came from certain manufacturers and labor organizations.”