FHWA on New Buy America Requirements

Valuable insights from FHWA on how it plans to move forward with new Buy America requirements.

On August 2, the Federal Highway Administration (FHWA) held a webinar discussing new Buy America requirements that are a part of the Bipartisan Infrastructure Law’s Build America, Buy America Act (BABAA). During the webinar, FHWA staff discussed the history of Buy America laws, differences between them, and the new requirements of BABAA.

The webinar was announced less than 24 hours before taking place and more than 2,000 attendees participated, asking hundreds of questions and highlighting urgent concerns from the construction industry with the new Buy America requirements. A portion of the webinar was dedicated to addressing stakeholder uncertainty, since final guidance for BABAA requirements have yet to be made.

FHWA clarified that BABAA does not supersede the previous Buy America requirements, but rather expands upon them. In the case of FHWA, these requirements now include the category of “construction materials” which, pending the release of the final guidance, include the following materials:

  • 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; and

FHWA also addressed how their previous general applicability waivers would be handled. BABAA requires FHWA to reevaluate any Buy America waivers that are more than 5 years old, give reasoning for continuing those waivers, and then open that reevaluation process for public comment on the Federal Register. FHWA noted that they have general applicability waivers for manufactured products, raw materials, and ferryboat parts which qualify for the reevaluation process. The public can expect these to be open for a comment period by November 10, 2022, the same date that FHWA’s general applicability waiver for BABAA implementation is set to expire and therefore newly awarded projects will need to abide by these requirements.

As a short overview of what BABAA involves, all federally funded construction projects starting May 14, 2022, must have materials manufactured in America. These requirements apply to three categories of materials separated into iron and steel, manufactured products, and construction materials. Exemptions were also provided for concrete, asphalt, and aggregate from these requirements. Due to a lack of final guidance, agencies such as the U.S. Department of Transportation, Energy, and Housing and Urban Development have delayed implementing parts or all of BABAA until November. The White House has released preliminary and nonbinding guidance and AGC has been working with federal agencies to make sure that implementation of the final and binding guidance of BABAA does not put undue stress on the construction industry.

A recording of the webinar along with written answers to audience questions will be uploaded on FHWA’s website, but has not yet been posted as of the time this article was written.

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