U.S. DOT Looks To Waiver Of Buy America Infrastructure Mandate

U.S. DOT Looks To Waiver Of Buy America Infrastructure Mandate

By Terri Jo Neff |

One of President Joe Biden’s signature initiatives is not going smoothly, with one of the government’s largest users of construction materials taking steps to forgo the May 14 deadline to ensure the manufacturing of all construction materials used in federally assisted infrastructure projects occurs in the United States.

In January 2021, Biden issued Executive Order 14005 to announce his Made in America initiative. It directed all federal agencies to maximize the use of goods, products, and materials produced in the U.S. when providing financial assistance awards and in procurements.

There have been longstanding federal rules for when iron and steel is American made, but implementing the Build America, Buy America Act enacted in November as part of the Infrastructure Investment and Jobs Act is not something the U.S. Department of Transportation can have in place by May 14 deadline.

Federal agencies had to wait for the Office of Management and Budget to determine the manufacturing process criteria for other construction materials. Which did not happen until two weeks ago when OMD announced its “preliminary and non-binding guidance.”

And that poses “a significant problem,” according to Polly Trottenberg, DOT’s deputy secretary.

DOT is responsible for funding thousands of road, bridge, rail, and transit infrastructure projects across the country through the Federal Aviation Administration, Federal Highway Administration, Federal Railroad Administration, Federal Transit Administration, and the National Highway Traffic Safety Administration. Under the new law, DOT will now also be responsible for ensuring those federally funded projects comply with Buy America.

But figuring out criteria for compliance based on non-binding guidance released only two weeks ago is not workable. Which is why Trottenberg is moving toward obtaining a 180 day temporary, transitional waiver of the deadline under a public interest declaration.

“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,” Trottenberg recently wrote.

According to Trottenberg, DOT officials have received concerns from stakeholders about the new Buy America manufacturing requirements as it relates to construction materials other than iron and steel. A waiver would avoid delays to much needed projects.

“Until we have more complete information on how construction materials are manufactured, and whether the manufacturing process complies with the OMB guidance, the Department is unable to ensure that transportation infrastructure projects continue to be obligated in compliance with these new requirements,” Trottenberg wrote.

The impact of new Buy America’s construction materials standards “could be significant,” said Trottenberg, who noted the National Bridge Inventory shows more than 62,500 bridges in America made with wood or timber elements, of which nearly 17,000 bridges have a main span consisting of wood or timber elements.

Another 19,562 bridges contain polymer-based products elements while 2,281 bridges contain non-ferrous metal elements, none of which have currently defined manufacturing processes to ensure compliance with Buy America standards.

DOT officials would use the waiver period to seek information state, local, industry, and other partners and stakeholders on challenges and solutions in connection with the Buy America construction materials mandate. It would also allow DOT to gather data on the sourcing of a full range of materials and products used in federally funded transportation projects while giving officials time to strategize for building up domestic capacity of construction materials.

Further, DOT hopes OMB will have issued its final standards by then.

“By the end of the waiver period, DOT expects state, industry, and other partners to establish an effective review process, as already in place for products such as iron and steel, as appropriate for construction materials, consistent with the [Bipartisan Infrastructure Law] and interpreting guidance and standards,” according to Trottenberg. 

Comments and feedback on the proposed temporary waiver can be made here. All submissions received, including any personal information therein, will be posted to the agency’s website without change or alteration.