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GMA Fall 2024 Update: Build America, Buy America Act (BABAA)

News | November 7, 2024 | By:

This is a summary of the activities and involvement of the Geosynthetic Materials Association (GMA) in the Build America, Buy American Act (BABAA) discussions over the past 2½ + years, since the passage of the Infrastructure Investment and Jobs Act (IIJA aka BIL). The provisions of BABAA created difficult and unprecedented complications for the implementation of the BIL. Since the law’s passage, GMA has worked continuously to collect information, communicate with implementing federal agencies, and advocate for clear guidance to support our members’ compliance with the new requirements.  Reaching this point has taken a lot of time and we would like to thank all of you for your contributions and patience as we navigated these issues.

Timeline Review

FHWA meeting: Context and Key Points

GMA was active in supporting the development and passage of the Infrastructure Investment and Jobs Act (IIJA aka BIL) in November 2021. We proposed several pieces of language for the bill and worked with congressional offices of both parties to pursue our priorities. The bill was signed into law on November 15, 2021.

2021 Infrastructure Investment and Jobs Act (IIJA)

“Produced in U.S.” Definition: The term ‘‘produced in the United States’’ means— (A) in the case of iron or steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States; (B) in the case of manufactured products, that—(i) the manufactured product was manufactured in the United States; and (ii) the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55% of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation; and (C) in the case of construction materials, that all manufacturing processes for the construction material occurred in the United States.

The Build America Buy America Act (BABAA) was incorporated into the IIJA. The language in the bill was very limited, so there was uncertainty as to how it applied to various products and materials, including geosynthetics. In addition, because BABAA applies to all federally-funded infrastructure (not just that funded by the U.S. Department of Transportation (USDOT), the Office of Management and Budget (OMB) assumed responsibility for implementation through its Made in America Office (MIAO). GMA was active in providing input and seeking information regarding the implementation of the BABAA rules.

Spring 2022 – OMB

“MIAO [Made in America Office] aims to increase reliance on domestic supply chains and reduce the need for waivers through a strategic process aimed at … gathering data to support decision-making to make U.S. supply chains more resilient; bringing increased transparency to waivers in order to send clear demand signals to domestic producers; and concentrating efforts on changes that will have the greatest impact.”

The Office of Management and Budget (OMB) memo, M-22-11, dated April 18, 2022, states that all materials and products used in transportation construction need to be categorized into one of three buckets: steel/iron, manufactured products, or construction materials. It further states that:

“…items 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.”

March 2023 – FHWA Notice for comments

A notice for comments on the Federal Highway Administration’s (FHWA) review of its general applicability waiver for manufactured product to determine whether to continue, discontinue, or modify the waiver has been posted at https://www.federalregister.gov/documents/2023/03/17/2023-05498/notice-and-request-for-comment-on-fhwas-review-of-its-general-applicability-waiver-of-buy-america#addresses . Section 70914(d) of Build America, Buy America Act (BABA) in IIJA requires federal agencies to review existing general applicability waivers of Buy America requirements by publishing in the Federal Register a notice that; (i) describes the justification for a general applicability waiver, and (ii) request public comments for a period of not less than 30 days on the continued need for general applicability waiver.

Spring 2023 – OMB Request for Comments

GMA is encouraged by the efforts of the Office of Management and Budget (OMB) to provide clarity to the processes of implementing the provisions of BIL, especially those which involve new or modified processes. GMA is pursuing dialogue and information to help our members comply with the provisions of BIL, so that the significant benefits of these materials can continue to be realized in our nation’s infrastructure. Our primary areas of concern are as follows:

1. Clarity;

2. Definitions;

3. Compliance process which doesn’t discourage use;

4. Connection to sustainability and resilience goals

March 2024 – FHWA Buy America NPRM and RFI on Manufactured Product Waiver

The FHWA is proposing to discontinue its general waiver of Buy America requirements for manufactured products and in doing so, require FHWA recipients to start applying Buy America requirements to manufactured products. The FHWA is also proposing standards for applying Buy America to manufactured products should the waiver be discontinued. The Manufactured Products Notice of Proposed Rulemaking is published in the Federal Register on Tuesday, March 12, 2024. Comments must be received on or before May 13, 2024.

The FHWA is also publishing a Request for Information (RFI) on the use of Manufactured Products in highway projects. The FHWA is seeking additional information on the domestic availability of specific manufactured products commonly used in FHWA-funded projects to ensure the continued effective implementation of FHWA programs that would be subject to new requirements for manufactured products. The Manufactured Products RFI is published in the Federal Register on Tuesday, March 12, 2024. Comments must be received on or before May 13, 2024.

(Currently waiting on FHWA resolution)

GMA Response;

Our primary areas of concern are as follows:

1. Clarity;

2. Definitions;

3. Compliance process which doesn’t discourage use;

4. Connection to sustainability and resilience goals

Fall 2023 – Meeting with FHWA Deputy Administrator (BABAA)

Brian Hogge invited GMA to correspond directly with questions/concerns

August 2024 – Response to Brian Hogge, Director, Office of Preconstruction, Construction, and Pavements

Sept 2024 – Reply from Brian Hogge

• response gives clear guidance on categories: – “Polymer-based geosynthetic products that only have minor additions of other materials are properly classified as construction materials.”

– “…items should generally be treated as manufactured products, rather than as construction materials, when they (1) consist of two or more of the listed construction materials that have been combined together to create a product with different properties than the individual construction materials, and (2) include at least one of the listed materials combined with a material that is not listed to create a product with different properties than the individual materials.”

• Enforcement/Compliance is being left to the State DOTs – “Note that the State DOTs are responsible for BABA compliance. Under 23 CFR 635.410(d), States are to use standard State and Federal-aid contract procedures to ensure compliance with Buy America. State DOTs are encouraged to modify any applicable standard procedures and contract specifications to ensure compliance with the BABA requirement for construction materials…”

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