[Federal Register Volume 87, Number 77 (Thursday, April 21, 2022)]
[Notices]
[Pages 23888-23891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08491]


=======================================================================
-----------------------------------------------------------------------

OFFICE OF MANAGEMENT AND BUDGET


Notice of Listening Sessions and Request for Information

AGENCY: Office of Management and Budget.

ACTION: Notice of listening session(s) and request for information.

-----------------------------------------------------------------------

SUMMARY: The Build America, Buy America Act (``the Act''), enacted as 
part of the Infrastructure Investment and Jobs Act (IIJA) on November 
15, 2021, provides for the application of domestic preference 
requirements to infrastructure projects funded by Federal financial 
assistance and also includes requirements to standardize and simplify 
application of the Buy American Act in government contracts. The Act 
directs the Office of Management and Budget (OMB) to issue guidance 
that will assist agencies as they apply the new requirements. OMB seeks 
input from the public concerning the Act's requirement that any 
infrastructure projects funded with Federal financial assistance use 
only construction materials ``produced in the United States.'' The Act 
also requires the Federal Acquisition Regulatory Council (FAR Council) 
to provide a definition for ``end product manufactured in the United 
States.'' To that end, OMB also seeks input, as a member of the FAR 
Council, on a definition for ``end product manufactured in the United 
States,'' for incorporation into the FAR, as required by the Act.

DATES: Written submissions must be received on or before 11:59 p.m. May 
23, 2022.

ADDRESSES: Please submit any written comments electronically through 
the Federal eRulemaking Portal at https://regulations.gov. Go to 
https://regulations.gov and select ``Office of Management and Budget'' 
from the agency menu to submit or view public comments.
    Please note that all public comments received are subject to the 
Freedom of Information Act and will be posted in their entirety, 
including any personal and/or business confidential information 
provided. Do not include any information you would not like to be made 
publicly available. All statements received, including attachments and 
other supporting materials, are part of the public record and subject 
to public disclosure. You should submit only information that you wish 
to make available publicly.
    In addition to receiving written comments, OMB plans to hold two 
public listening sessions, addressing the themes specified, on the 
following dates:
    Listening Session 1--April 25 (10:30 a.m.-12:00 p.m. EDT). This 
listening session will focus on non-ferrous metals and plastic and 
polymer-based products (including polyvinylchloride, composite building 
materials, and polymers used in fiber optic cables).
    To register for Listening Session 1, visit: https://www.eventbrite.com/e/public-listening-session-request-for-information-on-construction-materials-tickets-321722569867.
    Listening Session 2--April 28 (2:00 p.m.-3:30 p.m. EDT). This 
listening session will focus on glass (including optic glass), lumber, 
drywall, and all other products.
    To register for Listening Session 2, visit: https://www.eventbrite.com/e/public-listening-session-request-for-information-on-construction-materials-tickets-314863694787.

FOR FURTHER INFORMATION CONTACT: For questions about this RFI, please 
contact Tim Soltis, Office of Management and Budget, 202-395-7587, or 
via email (preferred) at [email protected]. For questions 
about the listening sessions, please email 
[email protected].

SUPPLEMENTARY INFORMATION: On November 15, 2021, President Biden signed 
into law the Infrastructure Investment and Jobs Act, Public Law 117-58, 
which includes the Build America, Buy America Act (``the Act''). Public 
Law 117-58, Sec.  70901-52. By strengthening requirements for the use 
of iron, steel, manufactured products, and construction materials 
produced in the United States, the Act will bolster America's 
industrial base, protect national security, and support high-paying 
jobs.

Construction Materials Acquired Under Federal Financial Assistance 
Programs

    The Act affirms, consistent with Executive Order 14005, Ensuring 
the Future Is Made in All of America by All of America's Workers (``the 
Executive Order''), this Administration's priority to ``use terms and 
conditions of Federal financial assistance awards to maximize the use 
of goods, products, and materials produced in, and services

[[Page 23889]]

offered in, the United States.'' (Exec. Order No. 14005). Under the 
Act's requirements, all iron, steel, manufactured products, and 
construction materials used in infrastructure projects funded at least 
partly by Federal financial assistance must be produced in the United 
States. In contrast to the Buy America requirement applied to the 2009 
American Recovery and Reinvestment Act, the statutory authority 
provided by the Act is not limited to the funds appropriated or 
authorized in the IIJA. BABA prohibits the award of Federal financial 
assistance for infrastructure unless all of the iron, steel, 
manufactured products, and construction materials used in the project 
are produced in the United States.
    Waivers traditionally available under existing Buy America laws are 
authorized under the Act where (1) applying the Buy America requirement 
would be inconsistent with the public interest; (2) where the iron, 
steel, manufactured products or construction material is not produced 
in the United States in sufficient and reasonably available quantities 
or of a satisfactory quality; and (3) where inclusion of the domestic 
products or construction materials will increase the cost of the 
overall project by more than 25 percent. In addition, Congress directs 
that the Act be applied in a manner consistent with U.S. trade 
agreement obligations related to Government procurement.
    The Act empowers OMB's Made in America Office (``MIAO'') to 
maximize and enforce compliance with legal authorities, including the 
Act itself, which establish preferences for goods made in the United 
States. MIAO aims to increase reliance on domestic supply chains and 
reduce the need for products that are not produced in the United States 
through a strategic process aimed at: Achieving consistency across 
agencies; 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 
prioritizing efforts on changes that will have the greatest impact. 
(OMB Memorandum M-21-26, Increasing Opportunities for Domestic Sourcing 
and Reducing the Need for Waivers from Made in America Laws available 
at: https://www.whitehouse.gov/wp-content/uploads/2020/11/M-21-06.pdf).
    The Act defines construction materials to be ``produced in the 
United States'' if ``all manufacturing processes'' for the materials 
occurred in the United States. The Act directs OMB to issue standards 
that define the term ``all manufacturing processes'' as it applies to 
U.S.-produced construction materials. In doing so, OMB must:
    (A) Ensure that the standards require that each manufacturing 
process required for the manufacture of the construction material and 
the inputs of the construction material occurs in the United States; 
and
    (B) take into consideration and seek to maximize the direct and 
indirect jobs benefited or created in the production of the 
construction material.
    To establish standards defining the term ``all manufacturing 
processes'' in the case of construction materials, OMB must first 
determine to which materials the standards will apply. The IIJA finds 
that ``construction materials'' include 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, and drywall.
    OMB seeks input on whether to refine this list, and requests input 
on specific materials or products or categories of materials or 
products that should be added, removed, or clarified, as well as advice 
on how to distinguish construction materials from manufactured 
products. Distinguishing construction materials from manufactured 
products is particularly important given the different standards the 
Act establishes for determining whether each is ``produced in the 
United States.'' A manufactured product is produced in the United 
States if ``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 percent 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.'' See IIJA 70912(6)(B). 
A construction material is produced in the United States if ``all 
manufacturing processes for the construction material occurred in the 
United States.'' See IIJA 70912(6)(C).
    Insufficient clarity regarding whether a particular item is a 
construction material or a manufactured product may undermine the goals 
of the Act.
    OMB also notes that under the Act, the term ``construction 
materials'' cannot include cement and cementitious materials, 
aggregates such as stone, sand, or gravel, or aggregate binding agents 
or additives. See IIJA 70917(c)(1). Further, OMB's standards defining 
``all manufacturing processes'' for construction material are 
prohibited from including cementitious materials, aggregates such as 
stone, sand, or gravel, or aggregate binding agents or additives as 
inputs of the construction material. See IIJA 70917(c)(2).

End Products Acquired Through Federal Procurement

    For Federal procurements, section 70921(d) of the Act requires the 
FAR Council to provide a definition in the FAR for ``end product 
manufactured in the United States,'' including ``guidelines to ensure 
that manufacturing processes involved in production of the end product 
occur domestically.'' FAR 25.003 defines end product as ``articles, 
materials, and supplies to be acquired for public use'' and further 
defines ``domestic end product'' as including an end product 
manufactured in the United States if the cost of its components mined, 
produced, or manufactured in the United States exceeds 55 percent of 
the cost of all components--a content level that will increase over 
time pursuant to recent FAR regulatory changes issued in accordance 
with section 8 of the Executive Order. See 87 FR 12780. However, 
neither the Buy American Act (BAA, 41 U.S.C. 8301-8305), which governs 
domestic preferences for Federal procurement of supplies, nor Executive 
Orders that implement the BAA, namely Executive Orders 10582, 13881, or 
14005, define the term ``manufacturing.'' The FAR also is silent on the 
meaning of this term.
    The Government Accountability Office (GAO) and courts have not 
articulated a single standard, but generally found during challenges 
arising under the BAA that manufacturing involves changes in physical 
character, and therefore actions such as testing and packaging are not 
part of the manufacturing process. See What Is Manufacturing? Why Does 
the Definition Matter? (Congressional Research Service, R44755).
    In the context of helping determine if small businesses are 
manufacturers that qualify for set-asides, SBA's regulations state that 
a manufacturer ``performs the primary activities in transforming 
inorganic or organic substances, including the assembly of parts and

[[Page 23890]]

components, into the end item being acquired. The end item must possess 
characteristics which, as a result of mechanical, chemical or human 
action, it did not possess before the original substances, parts or 
components were assembled or transformed. The end item may be finished 
and ready for utilization or consumption, or it may be semi-finished as 
a raw material to be used in further manufacturing. Firms which perform 
only minimal operations upon the item being procured do not qualify as 
manufacturers of the end item. Firms that add substances, parts, or 
components to an existing end item to modify its performance will not 
be considered the end item manufacturer where those identical 
modifications can be performed by and are available from the 
manufacturer of the existing end item.'' See 13 CFR 121.406(b)(2).
    OMB seeks feedback, on the FAR Council's behalf, to inform the 
definition and guidance on the meaning of manufacturing for purposes of 
determining if an end product is manufactured in the United States. On 
its own behalf, OMB seeks information from the public on the value of 
aligning the definition of manufacturing for the purposes of Federal 
procurement and Federal financial assistance.

Maximizing the Value of Public Feedback

    Responses to this RFI will assist OMB in achieving the goals and 
objectives of the Act and the Executive Order in the most effective 
manner possible. Therefore, public input is a vital component of 
informed policy making. OMB encourages public comment on these 
questions and seek any other information commenters believe is relevant 
to OMB's efforts. The type of feedback that would be especially useful 
includes recommendations for specific definitions, rules, regulations, 
and policies that will maximize the use of goods, materials, and 
products produced in the United States while ensuring that 
infrastructure projects are efficient and effective, including by 
working to avoid waste, increase the competitiveness of the U.S. 
economy, improve job opportunities through high labor standards, 
advance equity and support for underserved and disadvantaged 
communities, and build resilient infrastructure that helps combat the 
climate crisis, consistent with Executive Order 14052 on Implementation 
of the Infrastructure Investment and Jobs Act.
    Commenters should identify, with specificity, administrative 
burdens, program requirements, or unnecessary complexity that may 
impose unjustified barriers in general, or that may have adverse 
effects on equity for all, including individuals who belong to 
underserved communities that have been denied equitable treatment, such 
as Black, Latino, and Indigenous and Native American persons, Asian 
Americans and Pacific Islanders and other persons of color; members of 
religious minorities; lesbian, gay, bisexual, transgender, and queer 
(LGBTQ+) persons; persons with disabilities, including learning 
disabilities; persons who live in rural areas; and persons otherwise 
adversely affected by persistent poverty or inequality.
    Commenters should provide, with as much detail as possible, an 
explanation why their recommendations advance the statutory and 
regulatory objectives of the Act. Additionally, where applicable, 
please provide citations and sources that support your recommendations.
    If commenters identify benefits, costs, burdens, loopholes, or 
shortcomings of particular options for implementing the Act, OMB 
requests that commenters provide data and evidence to support these 
conclusions.

Specific Questions

    (1) Which materials, products, or categories of materials or 
products should be included as ``construction materials'' for the 
purposes of the Act?
    (2) What should ``all manufacturing processes'' mean under Section 
70912(6)(c) of the Act?
    (a) Should the term ``all manufacturing processes'' have the same 
meaning across all construction materials, or should the standard be 
set differently for each product, material, or category of product or 
material?
    (b) For example, the equivalent standard for iron and steel 
products is ``all manufacturing processes, from the initial melting 
stage through the application of coatings,'' which does not require the 
iron ore to be mined in the United States, and begins the manufacturing 
process with ``initial melting.'' What should be the equivalent first 
process for ``construction materials,'' and should the description be 
different for lumber, glass, and other construction materials?
    (c) If relevant to any construction materials, should ``final 
assembly'' be considered a manufacturing process? Or should a 
manufacturing process be limited to processes that alter the properties 
of a material in some way? If limited to processes that alter the 
properties of a material, should any particular standard apply? Should 
the standard be different for lumber, glass, and other construction 
materials?
    (3) How should agencies distinguish ``construction materials'' from 
``manufactured products'' to provide clarity on how to comply with the 
Act's requirements and ensure efficient and effective administration?
    (4) How should OMB take into consideration and seek to maximize the 
direct and indirect jobs benefited or created in the production of 
construction materials, as required by the Act?
    (5) What is the current and projected capacity of United States 
manufacturers to supply construction materials that meet the Act's 
standards? How will this capacity be impacted by the standard provided 
for ``all manufacturing processes'' under the Act? Please answer this 
question for any of the following materials that you have responsive 
information on: 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 drywall. Please also answer this question for any other 
material, product, or category of product you identified under question 
(1) above.
    (6) Do you anticipate that United States manufacturers will be able 
to supply construction materials that meet the Act's standards in 
sufficient and reasonably available quantities and of a satisfactory 
quality to all infrastructure projects covered by the Act? Will this 
ability be impacted by the increased demand for United States 
manufacturing? Do you foresee supply shortages or other issues for any 
material? If so, what Federal policies exist that may help alleviate 
the challenges you identified? Please answer this question for all 
materials referenced in question (5) above.
    (7) How can the Act's waiver transparency requirements and supplier 
scouting programs be leveraged to identify gaps in domestic sourcing 
and inform capital investment planning?
    (8) How else might OMB spur and incentivize domestic manufacturing 
of construction materials that meet the Act's standards?
    (9) What additional considerations should OMB consider when 
developing guidance and standards for construction materials?
    (10) What guidelines should be considered by OMB and the FAR 
Council to determine whether an end product that might be procured 
under the BAA by a Federal agency has been manufactured domestically?

[[Page 23891]]

    (a) What is the best way to promote a clear and consistent 
understanding of the term ``manufacturing'' while accommodating the 
range of manufacturing processes involved in the wide variety of 
products purchased by the Federal Government?
    (b) Should consideration be given to the definition of 
``manufacturer'' used in SBA's regulations, as described above?
    (c) Should consideration be given to holdings cited by courts or 
the GAO for determining whether an end product is domestically 
manufactured, such as whether substantial changes in physical character 
occurred domestically, whether the article is completed in the form 
required by the Government domestically, or whether the item being 
procured is made suitable for its intended use, and its identity is 
established, in the United States?
    (d) What existing sources, in addition to those described above, 
may offer relevant definitions or guidelines that could be suitable for 
understanding whether an end item has been domestically manufactured in 
the context of Federal procurement?

Celeste Drake,
Director, Made in America Office.
[FR Doc. 2022-08491 Filed 4-20-22; 8:45 am]
BILLING CODE 3110-01-P