Federal Register / Vol. 87, No. 101 / Wednesday, May 25, 2022 / Notices 31931 

copying and electronic filing. If you 

submit comments by mail and would 

like to know that they reached the 

facility, please enclose a stamped, selfaddressed postcard or envelope. FMCSA 

will consider all comments and material 

received during the comment period. 

II. Legal Basis 

FMCSA has authority under 49 U.S.C. 

31136(e) and 31315(b) to grant 

exemptions from Federal Motor Carrier 

Safety Regulations (FMCSRs). FMCSA 

must publish a notice of each exemption 

request in the Federal Register (49 CFR 

381.315(a)). The Agency must provide 

the public an opportunity to inspect the 

information relevant to the application, 

including any safety analyses that have 

been conducted. The Agency must 

provide an opportunity for public 

comment on the request. 

The Agency reviews safety analyses 

and public comments submitted and 

determines whether granting the 

exemption would likely achieve a level 

of safety equivalent to, or greater than, 

the level that would be achieved by the 

current regulation (49 CFR 381.305). 

The Agency must publish its decision in 

the Federal Register (49 CFR 

381.315(b)) with the reasons for denying 

or granting the application and, if 

granted, the name of the person or class 

of persons receiving the exemption and 

the regulatory provision from which the 

exemption is granted. The notice must 

specify the effective period and explain 

the terms and conditions of the 

exemption. The exemption may be 

renewed (49 CFR 381.300(b)). 

III. Background 

Current Regulatory Requirements 

The ELDT regulations, set forth in 49 

CFR part 380, subparts F and G, were 

implemented on February 7, 2022 

established minimum training standards 

for individuals applying for certain 

CDLs and defined curriculum standards 

for theory and BTW training. Subpart G 

of Title 49 of the CFR established an 

online training provider registry (TPR), 

eligibility requirements for providers to 

be listed on the TPR, and qualification 

requirements for instructors. Under 49 

CFR 380.713, a training provider must 

use instructors who meet the definitions 

of ‘‘theory instructor’’ and ‘‘behind-thewheel (BTW) instructor’’ in 49 CFR 

380.605, which require that instructors 

hold a CDL of the same (or higher) class, 

with all endorsements necessary to 

operate the CMV for which training is 

to be provided, and have either: (1) A 

minimum of 2 years of experience 

driving a CMV requiring a CDL of the 

same or higher class and/or the same 

endorsement; or (2) at least 2 years of 

experience as a BTW CMV instructor. 

Exceptions apply to both definitions. 

Applicant’s Request 

SBL seeks an exemption from the 

requirement in 49 CFR 380.713 that a 

training provider use instructors who 

meet the definitions of ‘‘theory 

instructor’’ and ‘‘BTW instructor’’ in 49 

CFR 380.605. SBL specifies that it has 

two employees who do not have two 

years of required driving experience. 

SBL states that the two employees meet 

the qualifications under current State 

regulations and Federal regulations in 

effect before implementation of the 

ELDT requirements, have class A CDLs 

with tanker endorsements, and are 

medically qualified. 

SBL states that the instructor 

qualifications required by the ELDT 

regulations will have a severe negative 

impact on its business and on the driver 

shortage. SBL requests an exemption 

that would allow the two instructors to 

accumulate two years of experience 

while continuing to provide BTW and 

theory instruction. SBL asserts the 

exemption would allow for full 

instructor staffing, resulting in a ‘‘50% 

increase of approximately 96 students 

annually.’’ If the exemption is denied, 

SBL states that it would be forced to 

terminate the employees and replace 

them with less qualified individuals. 

SBL also notes that FMCSA has 

included ‘‘grandfathering’’ provisions in 

the implementation of other new 

regulations. SBL points to the 

provisions in 49 CFR 380.603, which 

provide that individuals who obtained a 

Commercial Learner’s Permit (CLP) 

before February 7, 2022 are not required 

to comply with the ELDT rule if they 

obtain a CDL before the CLP expires. 

SBL is requesting similar consideration 

for State-licensed instructors who met 

applicable Federal requirements prior to 

February 7, 2022. 

IV. Equivalent Level of Safety 

To ensure an equivalent level of 

safety, SBL’s application offers a 

comprehensive list of the qualifications 

for the two driver training instructors 

for whom they request the exemption. 

Both individuals meet the qualifications 

required prior to implementation of the 

ELDT rule; both have Class A CDLs with 

tanker endorsements; both are medically 

qualified; both have graduated from a 

State-licensed truck driver training 

school; both have taught over the road 

driving; both have previously trained 

commercial drivers; one individual 

worked as a commercial driver; and 

both have the ability to instruct all 

topics required by the ELDT regulations. 

SBL indicates that the request for the 

exemption ‘‘places no known negative 

safety impact’’ and SBL would continue 

to adhere to all applicable State and 

Federal regulations that govern the safe 

operation of CMVs. SBL provides the 

South Carolina Department of Motor 

Vehicles requirements for instructors 

that were in effect prior to 

implementation of the ELDT final rule. 

SBL asserts that both employees meet 

those requirements and that South 

Carolina-licensed schools have seen no 

negative safety impacts to date by using 

instructors with fewer than 2 years of 

driving experience. 

A copy of SBL’s application for 

exemption is available for review in the 

docket for this notice. 

V. Request for Comments 

In accordance with 49 U.S.C. 

31315(b), FMCSA requests public 

comment from all interested persons on 

SBL’s application for an exemption from 

the requirement in 49 CFR 380.713 to 

use instructors who meet the definitions 

of ‘‘theory instructor’’ and ‘‘BTW 

instructor’’ in 49 CFR 380.605. All 

comments received before the close of 

business on the comment closing date 

indicated at the beginning of this notice 

will be considered and will be available 

for examination in the docket at the 

location listed under the Addresses 

section of this notice. Comments 

received after the comment closing date 

will be filed in the public docket and 

will be considered to the extent 

practicable. In addition to late 

comments, FMCSA will also continue to 

file, in the public docket, relevant 

information that becomes available after 

the comment closing date. Interested 

persons should continue to examine the 

public docket for new material. 

Larry W. Minor, 

Associate Administrator for Policy. 

[FR Doc. 2022–11271 Filed 5–24–22; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

Temporary Waiver of Buy America 

Requirements for Construction 

Materials 

ACTION: Notice. 

SUMMARY: As the Biden-Harris 

Administration implements the historic 

Bipartisan Infrastructure Law (BIL), we 

seek to maximize the use of American 

made products and materials in all 

federally funded projects while also 

successfully delivering a wide range of 


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31932 Federal Register / Vol. 87, No. 101 / Wednesday, May 25, 2022 / Notices 

1 In this notice, references to ‘‘Buy America’’ 

include domestic preference laws called ‘‘Buy 

American’’ that apply to DOT financial assistance 

programs. 

critical infrastructure projects for States, 

local communities, counties, Tribal 

nations and farms, factories and 

businesses across the U.S. In order to 

deliver projects and meaningful results 

while ensuring robust adoption of Buy 

America standards, the U.S. Department 

of Transportation (‘‘DOT’’ or 

‘‘Department’’) is establishing a 

temporary public interest waiver for 

construction materials for a period of 

180 days beginning on May 14, 2022 

and expiring on November 10, 2022. 

DOT is establishing this transitional 

waiver to prepare for compliance with 

the new Made in America standards for 

construction materials. During this time 

period, DOT 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. 

DATES: The waiver is applicable to 

awards that are obligated on or after 

May 14, 2022 and before November 10, 

2022. Unless extended, the waiver 

expires on November 10, 2022. 

FOR FURTHER INFORMATION CONTACT: For 

questions about this notice, please 

contact Darren Timothy, DOT Office of 

the Assistant Secretary for 

Transportation Policy, at 

darren.timothy@dot.gov or at 202–366– 

4051. For legal questions, please contact 

Michael A. Smith, DOT Office of the 

General Counsel, 202–366–2917, or via 

email at michael.a.smith@dot.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

In January 2021, President Biden 

issued Executive Order (E.O.) 14005, 

titled ‘‘Ensuring the Future is Made in 

All of America by All of America’s 

Workers,’’ launching a whole-ofgovernment initiative to strengthen 

Made in America standards. 

The E.O. states that the United States 

Government ‘‘should, consistent with 

applicable law, use terms and 

conditions of Federal financial 

assistance awards and Federal 

procurements to maximize the use of 

goods, products, and materials 

produced in, and services offered in, the 

United States.’’ DOT is committed to 

ensuring strong and effective Buy 

America implementation consistent 

with E.O. 14005 and has a long track 

record of successfully applying Made in 

America standards to support American 

workers and businesses through its 

more than $70 billion in grant programs 

and $700 million in direct purchases in 

FY2020. 

On November 15, 2021, President 

Biden signed the Bipartisan 

Infrastructure Law (BIL), enacted as the 

Infrastructure Investment and Jobs Act, 

Public Law 117–58, which includes the 

Build America, Buy America Act (‘‘the 

Act’’). Public Law 117–58, div. G 

§§ 70901–52. The BIL not only makes a 

historic investment in American 

transportation—from roads and bridges 

to rail to transit—but also greatly 

strengthens Made in America standards. 

Specifically, the Act expands the 

coverage and application of Buy 

America preferences in Federal 

financial assistance programs for 

infrastructure. The Act requires that no 

later than May 14, 2022—180 days after 

the date of enactment—the head of each 

covered Federal agency shall ensure that 

‘‘none of the funds made available for a 

Federal financial assistance program for 

infrastructure . . . may be obligated for 

a project unless all of the iron, steel, 

manufactured products, and 

construction materials used in the 

project are produced in the United 

States.’’ BIL § 70914(a). 

The Act provides that the preferences 

under Section 70914 apply only to the 

extent that a domestic content 

procurement preference as described in 

Section 70914 does not already apply to 

iron, steel, manufactured products, and 

construction materials. BIL § 70917(a)– 

(b). This provision allows Federal 

agencies to preserve existing Buy 

America policies and provisions that 

meet or exceed the standards required 

by the Act, such as FHWA’s existing 

requirements for iron and steel. 

One of the new Buy America 

preferences included under Section 

70914 of the Act is for construction 

materials. By May 14, 2022, each 

covered Federal agency must ensure 

that all manufacturing processes for 

construction materials used in Federally 

assisted infrastructure projects occur in 

the United States. None of the specific 

statutes that apply particular Buy 

America 1 requirements to the Federal 

financial assistance programs 

administered by DOT’s Operating 

Administrations (OAs), including 49 

U.S.C. 50101 (FAA); 23 U.S.C. 313 

(FHWA); 49 U.S.C. 22905(a) (FRA); 49 

U.S.C. 5323(j) (FTA); and 46 U.S.C. 

54101(d)(2) (MARAD), specifically 

cover construction materials, other than 

to the extent that such materials would 

already be considered iron, steel, or 

manufactured products. 

In addition to establishing Buy 

America preferences, the Act also 

provides certain statutory authorities for 

the Made in America Office (‘‘MIAO’’) 

in the Office of Management and Budget 

(‘‘OMB’’). BIL §§ 70915(b) and 70923. 

MIAO was first established by Section 4 

of E.O. 14005. MIAO’s authorities under 

the BIL include issuing guidance to 

assist in applying the Act’s 

requirements and issuing standards that 

define term ‘‘all manufacturing 

processes’’ in the case of construction 

materials. BIL § 70915. 

On April 18, 2022, OMB issued 

memorandum M–22–11, ‘‘Initial 

Implementation Guidance on 

Application of Buy America Preference 

in Federal Financial Assistance 

Programs for Infrastructure’’ 

(‘‘Implementation Guidance’’). Under 

section VIII of the Implementation 

Guidance, ‘‘Preliminary Guidance for 

Construction Materials,’’ ‘‘construction 

materials’’ includes: An article, 

material, or supply—other than an item 

of primarily iron or steel; a 

manufactured product; cement and 

cementitious materials; aggregates such 

as stone, sand, or gravel; or aggregate 

binding agents or additives—that is or 

consists primarily of: 

• 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; or 

• drywall. 

Implementation Guidance at p. 13–14. 

The Implementation Guidance also 

states that ‘‘an article, material, or 

supply should only be classified into 

one of the following categories: (1) Iron 

or steel; (2) a manufactured product; or 

(3) a construction material. For ease of 

administration, an article, material, or 

supply should not be considered to fall 

into multiple categories.’’ Id. at p. 6. The 

Implementation Guidance also explains 

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.’’ Id. at p. 14. 

OMB characterizes its guidance on 

which materials are construction 

materials as ‘‘preliminary and nonbinding guidance . . . so that agencies 

can begin applying Buy America 


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2Because the application of Buy America to 

construction materials is required under BIL 

§ 70914, the authority for this waiver is also based 

on BIL § 70914. Therefore, reference to, and reliance 

on, the waiver authority under specific Buy 

America provisions that are administered by the 

Department, such as 49 U.S.C. 50101 (FAA); 23 

U.S.C. 313 (FHWA); 49 U.S.C. 22905(a) (FRA); 49 

U.S.C. 5323(j) (FTA); and 46 U.S.C. 

54101(d)(2)(MARAD), is unnecessary. 

requirements to those materials.’’ Id. at 

p. 13. 

DOT is taking appropriate steps to 

ensure the definition of ‘‘construction 

material’’ specified in the 

Implementation Guidance applies to 

each award from a financial assistance 

program for infrastructure projects, 

including by incorporating that 

definition in terms and conditions 

incorporating a Buy America preference. 

Section 70915(b) of the BIL requires 

OMB to issue standards that define ‘‘all 

manufacturing processes’’ for 

construction materials. Section VIII of 

the Implementation Guidance provides 

that, ‘‘[p]ending MIAO’s issuance of 

final standards on construction 

materials, and absent any existing 

applicable standard in law or regulation 

that meets or exceeds these preliminary 

standards, agencies should consider ‘all 

manufacturing processes’ for 

construction materials to mean the final 

manufacturing process and the 

immediately preceding manufacturing 

stage for the construction material.’’ 

Implementation Guidance at p. 14. After 

considering information received 

through stakeholder and industry 

outreach, MIAO will issue further 

guidance that identifies initial 

manufacturing process for each type of 

construction material that should be 

considered as part of ‘‘all manufacturing 

processes.’’ Id. Agencies are also 

directed to ‘‘consult with MIAO, as 

needed, to ensure that any waiver 

issued for construction materials is 

explicitly targeted and time-limited, in 

order to send a clear market signal that 

additional standards for ‘all 

manufacturing processes’ in the case of 

construction materials will be 

forthcoming.’’ Id. 

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.’’ Implementation 

Guidance at p. 10. The guidance also 

recognizes several instances in which 

Federal agencies may consider issuing a 

public interest waiver and encourages 

agencies to consider an adjustment 

period where time limited waivers 

would allow recipients and agencies to 

transition to new Buy America 

preferences, rules, and processes. Id. at 

p. 11. 

In bringing its Federal financial 

assistance programs for infrastructure 

into compliance with the Act’s 

requirement for construction materials, 

DOT must also ensure that these 

important Federal programs for 

transportation infrastructure investment 

are able to obligate funds and complete 

infrastructure projects in a timely 

manner. For example, the new 

construction materials requirement will 

apply to capital projects funded by 

formula and discretionary programs of 

the Federal Transit Administration, 

including projects under the new All 

Stations Accessibility Program, which 

will upgrade the accessibility of fixed 

guideway public transportation systems 

for people with disabilities. 

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. For example, while 

the exact impact on highway project 

construction is unknown, the 

Department believes that it could be 

significant. According to the current 

National Bridge Inventory, there are 

more than 62,588 bridges with wood or 

timber elements (including 16,909 

bridges whose main span have wood or 

timber elements), 2,281 bridges with 

non-ferrous metal elements, and 19,562 

bridges with polymer-based products 

elements. Additionally, construction 

materials are used in a wide variety of 

other applications, such as culverts, 

glass for retro-reflectivity in pavement 

markings, glass in fiber optics involved 

in utility relocations, non-ferrous metals 

in sign sheeting, and dry wall used in 

rest areas and other vertical 

construction applications. These are just 

a few examples of construction 

materials that may be found in highway 

projects. 

The Department has heard from 

stakeholders regarding concerns about 

the implementation of Buy America 

requirements to 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. 

Issuance of the Proposed Temporary 

Waiver and Discussion of Comments 

Received 

In accordance with Section 

70914(b)(1) of the Act, on April 28, 

2022, DOT published a notice on its 

website seeking comment on whether to 

use its authority to provide a temporary 

waiver of the Buy America requirement 

for construction materials on DOTassisted infrastructure projects, on the 

basis that applying the domestic content 

preference for these materials would be 

inconsistent with the public interest.2

The notice explained that the waiver 

would be applicable to awards that are 

obligated on or after May 14, 2022. To 

maximize notice to affected 

stakeholders, the Department also 

announced the proposal on several 

email distribution lists related to the 

operating administrations’ existing Buy 

America requirements. 

The DOT received 83 separate 

comments in response to the 

publication from a wide array of 

stakeholders, including State 

transportation agencies, public transit 

agencies, airport operators, construction 

firms, manufacturers and suppliers, 

labor organizations, and individuals, as 

well as associations representing each of 

those groups. The vast majority of 

commenters supported DOT’s proposal 

to issue a temporary waiver for 

construction materials. Comments 

opposing the waiver came from certain 

manufacturers and labor organizations; 

their key concerns relevant to the 

proposal are discussed in more detail 

below. 

In the notice of proposed waiver, DOT 

asked whether a longer or shorter 

effective period than 180 days from May 

14, 2022 would be warranted. Most 

commenters who addressed this 

question stated that this length of time 

would likely be inadequate to 

accomplish the goals of the transition 

waiver period and suggested that it be 

increased. Most of those commenters 

suggesting a longer waiver period 

specifically offered that it should have 

a duration of one year, but several 

others proposed even longer effective 

periods ranging from 18 months to 4 

years. Several reasons were given for the 

commenters’ belief that a longer period 

would be justified. For example, the 

Utah Department of Transportation 

described a series of steps that will need 

to be undertaken before the new 

requirements for construction materials 

can be implemented, including OMB 

issuing final standards for construction 

materials, as well as State DOTs 

updating standard specifications; 

establishing certification processes; 

working with and informing industry to 

demonstrate their products meet the 

standards; working with contractors and 

incorporating new contract provisions 


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prescribing Buy America requirements; 

and reviewing and updating 

stewardship and oversight agreements 

with FHWA to address non-compliance 

with Made in America standards. The 

Alaska Department of Transportation 

and Public Facilities and the 

Pennsylvania Department of 

Transportation also noted that the 180- 

day period would overlap with the peak 

construction season in most States, and 

thus affect participation from the 

contractors, suppliers, and agencies that 

are needed to develop new compliance 

processes for construction materials. 

Other commenters, such as the 

Greater Orlando Aviation Authority, 

focused on the steps needed to 

investigate potential domestic sources of 

construction materials and to build up 

an adequate supply base to support 

federally funded transportation 

infrastructure projects. Several 

commenters, such as the Associated 

General Contractors of America, noted 

that current supply chain challenges in 

the materials industry and the resulting 

volatility in those markets make it 

‘‘extremely difficult to determine at this 

time whether U.S. production for these 

newly covered materials can support the 

demand the IIJA’s increased funding 

levels will place on these markets, or 

whether there is sufficient or existing 

U.S. production at all for some of these 

goods.’’ 

The Wyoming Department of 

Transportation, however, commented 

that it while it ‘‘believes the waiver may 

need to be extended, perhaps 

considerably,’’ it also ‘‘recognizes that 

DOT needs to move promptly to ensure 

at least the six-month period to 

minimize disruption to the current 

construction season,’’ and noted that 

while compliance procedures may not 

currently be in place, ‘‘the ability to 

certify materials will grow over time, so 

there should be a good faith certification 

process that can be refined over time.’’ 

While recognizing the challenges that 

commenters noted on the steps that will 

ultimately be required to fully 

implement the new Buy America 

provisions for construction materials 

and to achieve a robust, thriving 

domestic supply base, DOT agrees with 

Wyoming DOT on the importance of 

moving quickly with a short-term 

waiver and with an approach of refining 

processes over time, rather than 

delaying the application of the new 

requirements for an extended period of 

time until those processes and domestic 

supply bases can be perfected. 

No commenters provided evidence of 

an existing certification process for 

construction materials that is already in 

use and could be immediately adopted 

by suppliers, contractors, and project 

sponsors. However, the Spring City 

Electrical Manufacturing Company, a 

manufacturer of aluminum lampposts, 

listed five products that it believes 

would qualify as construction materials 

under the Act and noted that the 

aluminum production process is similar 

to that for iron and steel products, for 

which ‘‘DOT has previously determined 

the ‘material certification process has 

been adequate for determining 

compliance,’ ’’ as ‘‘contractors must 

provide certificates of origin to the 

project sponsor.’’ The commenter also 

stated that ‘‘notably for the [State] 

DOTs’ interests the aluminum 

lampposts and bases are covered by 

country of origin marking requirements 

in 19 U.S.C. 1304(e) that should aid in 

origin identification.’’ The Department 

will determine whether the company’s 

products would be considered 

construction materials once OMB has 

issued final standards, but DOT believes 

that this comment supports the 

conclusion that some types of 

construction materials may be readily 

addressed with new Buy America 

compliance procedures adapted from 

existing procedures elsewhere in use, 

and that the limited 180-day duration of 

the waiver as proposed is appropriate to 

enable that adaptation. 

Some commenters, including the 

United Steelworkers Union (USW), the 

Municipal Castings Association (MCA), 

and the Alliance for American 

Manufacturing (AAM) questioned the 

duration of the period that the 

Department provided to comment on 

the proposed waiver. USW asserted that 

‘‘BABA clearly states that agencies 

requesting general applicability public 

interests waivers allow for 30 days for 

public comments.’’ The Department 

disagrees with that description of the 

statute. Section 70914(c)(2) of the Act 

requires agencies to ‘‘provide a period of 

not less than 15 days for public 

comment on the proposed waiver.’’ 

Section 70914(d) is a separate provision 

that requires a comment period of ‘‘not 

less than 30 days’’ when an agency 

conducts a review of an existing general 

applicability waiver. That provision is 

not applicable to new general 

applicability waivers. Accordingly, the 

Department’s comment period satisfies 

the applicable statutory requirement. 

The Department chose not to extend the 

comment period beyond May 13, 2022, 

because the relevant Buy America 

requirements became effective on May 

14, 2022. The Department determined 

that the interest in providing financial 

assistance recipients with certainty 

about applicable requirements 

outweighed the benefits of a longer 

comment period. That determination is 

supported by the fact that 82 

commenters, representing a diverse set 

of stakeholders, submitted comments in 

the time provided. 

USW, MCA, and AAM, along with the 

Commercial Metals Company, also 

expressed concern about the 

Department’s failure to propose the 

waiver before April 28, 2022. USW 

asserted that this undermines 

stakeholder’s confidence in the 

Department’s capacity to efficiently 

implement the Act. The Department’s 

timing was responsive to the public 

availability of the Implementation 

Guidance. As explained above, that 

guidance was issued on April 18, 2022; 

the Department proposed the waiver 8 

business days later. If the Department 

had proposed the waiver before OMB 

issued the Implementation Guidance, 

the public would have lacked important 

context to inform its comments and the 

Department would have been at risk of 

needing to withdraw and re-propose a 

waiver that complied with the 

Implementation Guidance. The 

Department and OMB anticipate 

providing additional opportunities for 

further stakeholder input on 

implementation of the Act, and, as 

described in the proposal and this 

notice, the Department will consider 

narrowing the breadth or shortening the 

duration of this waiver in response to 

information supporting the availability 

of demonstrably compliant categories of 

construction materials. 

USW and AAM also raised concerns 

about the issuance of a temporary 

general applicability waiver for 

construction materials on the basis of 

public interest. Both parties 

acknowledged ‘‘that limited, narrow use 

of waiver authority may be necessary, 

including for those departments and 

agencies working to establish a Buy 

America policy for the first time.’’ DOT 

agrees and notes that while its 

Operating Administrations have 

longstanding experience in applying 

Buy America preferences for iron and 

steel and for manufactured products, 

applying such policies to construction 

materials is a new exercise. USW also 

noted that ‘‘this Administration has 

stated clearly that public interest 

waivers be used sparingly, and reserved 

for truly exigent circumstances.’’ DOT 

agrees that public interest waivers 

should be used sparingly and has 

concluded that avoiding the disruption 

to transportation infrastructure projects 

that would occur without a period for 

deliberate development of processes 

needed to transition to the new 

requirements constitutes a rare and 


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appropriate use of the authority. Both 

USW and AAM also expressed concern 

about public interest waivers being used 

to delay the application of Buy America 

preferences indefinitely. DOT’s purpose 

in limiting the temporary waiver for 

construction materials to only 180 days 

avoids such an outcome and 

communicates that stakeholders need to 

rapidly adopt the necessary procedures 

to ensure compliance with the new 

requirements. 

Several commenters requested that 

the Department expand the scope of the 

proposed waiver to include items that 

are not construction materials, as that 

term is defined in the Act and Section 

VIII of the Implementation Guidance. 

The Department considers those 

requests to be outside the scope of its 

current waiver action. Likewise, for the 

purpose of this waiver action, DOT 

considers out of scope the comments 

that were received addressing other 

types of public interest waivers that 

DOT could issue under the Act, the 

application of Buy America 

requirements to manufactured products 

and to iron and steel, and the 

importance of complying with cargo 

preference (a.k.a. Ship American) 

requirements when transporting foreignmade materials purchased pursuant to a 

Buy America waiver. However, DOT 

values the feedback received in those 

comments and will consider those 

requests and comments as it continues 

implementation of the Act, including its 

development of guidance and reviews of 

existing waivers of general applicability 

under section 70914(d) of the Act. 

Finding on the Temporary Waiver 

Based on all the information available 

to the Agency, DOT concludes that 

applying the domestic content 

preference for construction materials 

under Section 70914(a) of the Act on 

DOT-assisted infrastructure projects 

now, before adequate compliance 

processes are in place, would be 

inconsistent with the public interest, 

and that a temporary waiver of that 

requirement is thus appropriate under 

Section 70914(b)(1). This waiver is 

applicable only to awards obligated on 

or after May 14, 2022 and before 

November 10, 2022. For awards 

obligated during that 180-day period, 

the waiver applies for the duration of 

the award. Unless extended, the waiver 

is inapplicable to any award obligated 

on or after November 10, 2022. 

In issuing this temporary public 

interest waiver, DOT is not making a 

finding that any construction materials 

are not produced in the United States in 

sufficient and reasonably available 

quantities or of a satisfactory quality. 

Such a finding would require a separate 

waiver action under section 70194(b)(2). 

Ramping Up Made in America 

Compliance and Ongoing Request for 

Comments 

With the goal of advancing crucial 

infrastructure projects in a timely 

manner while implementing the new 

Buy America requirements, the DOT is 

providing this notice as its finding that 

a waiver of Buy America requirements 

for construction materials is appropriate 

at this time. DOT continues to 

encourage suppliers and other 

stakeholders to inform DOT of any 

procedures that may be developed or be 

in place to certify the compliance of 

construction materials with the 

domestic preference requirement in the 

Act. That information helps DOT 

rapidly encourage domestic sourcing 

and potentially shorten the effective 

period or narrow the applicability of the 

transitional waiver. The Department 

also encourages supplier and other 

stakeholders to identify categories of 

construction materials that currently 

have sufficient domestic availability to 

support DOT-assisted infrastructure 

projects, to assist contractors and project 

sponsors in incorporating compliant 

products in their projects and to help 

the Department focus its activities to 

benefit domestic manufacturers. 

Comments may be submitted to the U.S. 

Government electronic docket site at 

http://www.regulations.gov/, Docket: 

DOT–OST–2022–0047. 

The temporary general waiver of the 

Buy America requirement for 

construction materials under the Act 

will provide sufficient time for DOT to: 

(i) Seek information and feedback from 

State, local, industry, and other partners 

and stakeholders on challenges with 

and solutions for implementing the 

requirement; (ii) allow a reasonable 

adjustment period for recipients of DOT 

financial assistance, including States, 

local communities, Tribal nations, 

transit agencies, railroads, airports and 

ports and their industrial vendors to 

develop and transition to new 

compliance and certification processes 

for construction materials; and (iii) 

gather data on the sourcing of the full 

range of construction materials used in 

Federally funded transportation projects 

and strategies for increasing domestic 

capacity to produce those materials. 

During the waiver period, DOT 

expects that implementing partners will 

take rapid action to prepare for 

compliance with the new requirements, 

as they currently do for iron and steel, 

for example. Actions to prepare for 

compliance with the new requirements 

include: 

1. Establishing certification processes 

by grantees to determine Buy America 

compliance for construction materials; 

2. Working with industry to ensure 

that manufacturers are prepared to 

demonstrate that their products meet 

applicable Buy America standards; 

3. Ensuring contractors and 

subcontractors are prepared to certify 

compliance with Buy America 

requirements for construction materials, 

and provide all relevant information, 

including contract provisions 

prescribing Buy America requirements; 

4. Establishing appropriate diligence 

by State DOTs, contracting agencies, 

and other relevant agencies, including 

audits and reviews as appropriate; and 

5. Providing further data and 

information to DOT on the domestic 

availability of construction materials, in 

particular, through comment by 

suppliers on construction materials that 

can be sourced in the U.S. currently. 

During the waiver period, DOT will 

also work to prepare for implementation 

of new Made in America requirements 

for construction materials by: 

1. Assessing existing Made in 

America processes such as questions 

and requirements for grantees and 

contractors to ensure processes for 

reviewing construction materials are 

aligned with standards already in place, 

such as for iron and steel, as 

appropriate; 

2. Building new Made in America 

requirements into forthcoming Notice of 

Funding Opportunities, loan programs, 

and other resources provided by the 

Department, as appropriate; 

3. Reviewing DOT’s enforcement 

processes, including stewardship and 

oversight agreements with States, riskbased reviews, and compliance 

assessment program reviews for noncompliance with Made in America 

standards to ensure the enforcement 

processes for construction materials are 

effective and consistent with processes 

for products such as iron and steel, as 

appropriate; 

4. Reviewing data, information, and 

comments provided by States, industry, 

and other partners to further assess 

opportunities, challenges, and the 

availability of domestically sourced 

construction materials. Stakeholders are 

encouraged to provide information to 

DOT in response to this notice, as well 

as to the OMB’s Listening Sessions and 

Request for Information on the 

application of Made in America 

requirements to construction materials. 

By the end of the waiver period, DOT 

expects State, industry, and other 

partners to establish an effective 

compliance process appropriate for 

construction materials, consistent with 


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31936 Federal Register / Vol. 87, No. 101 / Wednesday, May 25, 2022 / Notices 

the BIL and relevant implementation 

guidance and standards. As explained 

above, the Department’s implementation 

activities will continue during the 

waiver period. If DOT can determine, 

using all available information, 

including stakeholder comments and 

data, that there are currently sufficient 

compliance processes for certain 

categories of construction materials, 

DOT will consider shortening the period 

of the waiver overall, or for certain 

categories of product, to rapidly 

encourage domestic sourcing. In making 

any adjustments, DOT will follow the 

public input requirements of Section 

70914(d), which provide for at least a 

30-day comment period for DOT’s 

conduct of a review of an existing 

general applicability waiver. 

Issued in Washington, DC, on: May 19, 

2022. 

Polly E. Trottenberg, 

Deputy Secretary. 

[FR Doc. 2022–11195 Filed 5–24–22; 8:45 am] 

BILLING CODE 4910–9X–P 


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