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Thu, 02/15/2024 – 09:33

Groups File Formal Request for Rulemaking Urging White House to Drop its Current Approach to Requirements that Risks Confusion and Delays on Key Construction Projects

Four national trade associations petitioned the White House to make improvements in its implementation of “made in America” requirements for construction products and materials. They noted their members have encountered significant difficulty in navigating the White House Office of Management and Budget’s (OMB) “opaque and unbalanced implementation,” risking delays and cost increases for vital housing, transportation, and water infrastructure projects funded by the Infrastructure Investment & Jobs Act.

The infrastructure law, which was enacted in 2021, includes the Build America, Buy America Act, which expands longstanding domestic preference requirements for construction projects that incorporate federal dollars.

“Our coalition fully supports the Act’s laudable core purpose of strengthening domestic manufacturing,” the trade groups said. “Unfortunately, OMB’s focus on managing virtually every aspect of the Build America, Buy America Act requirements is not practical and causes confusion and delay with federal agencies that fund construction projects.”  

In particular, the groups note continued uncertainty surrounding the waiver process. The Buy America provisions allow for these exceptions if domestically made products are unavailable or significantly more costly. However, under executive order, OMB must review the hundreds of waiver requests made to federal agencies each year. While OMB has a 15-day target for these reviews, the process often proves to be lengthy and unpredictable as the politics of these waivers can lead to bureaucratic inertia. For example, the Illinois Department of Transportation submitted a waiver on May 21, 2021, that was not posted for public comment until more than two years later, on August 28, 2023. Such uncertainty with the waiver process threatens project delays, cost increases, and even project cancellations.

The groups’ filing calls for more timely waivers, given the record number of projects utilizing federal funding, short-term deficiencies in domestic manufacturing capabilities, increased materials costs and unpredictable lead times for key components. The trade groups put forth recommendations to ensure an effective and “depoliticized” waiver process by allowing all such requests to be treated equally and transparently. If a waiver is granted, it does not mean that a Democratic or Republican administration does not care about domestic manufacturing or American jobs; it means that they also care about American construction jobs and want to rebuild America’s infrastructure, the groups note.

The associations said OMB should focus on implementing the requirements at a generalized level and empower federal agencies with broad discretion to fill in the details. They also urged federal officials to create a database listing construction materials and products that are Build America, Buy America Act compliant.

“OMB needs to change course and foster a deliberative, data-driven implementation process that not only prioritizes domestic manufacturing but also provides adequate consideration for the timely and successful delivery of essential infrastructure projects,” the groups said in their filing. “Failure to act will result in the IIJA’s inability to fulfill its infrastructure promise to the American people.”

The groups filed a formal petition for a new rulemaking under the Administrative Procedures Act and a request under the Paperwork Reduction Act to review the way the administration collects Buy America waivers. The groups are the American Public Transportation Association; the American Road & Transportation Builders Association; the Associated General Contractors of America; and the National Association of Home Builders.

Click here to view a copy of the group’s petition.