‘Build America, Buy America’ Guidelines to Impact Importers

Trade Update • May 18, 2022

Importers and other businesses that supply goods to the federal government are to likely be impacted by new guidelines and the upcoming final determination, which will provide a clear definition to what it means for a product to be manufactured in the U.S.

The Build America, Buy America guidance requires that:

• All iron and steel used in the project are produced in the United States. This means all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.

• All manufactured products used in the project are produced in the United States. This means the manufactured product was manufactured in the United States, and 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.

• All construction materials are manufactured in the United States. This means that all manufacturing processes for the construction material occurred in the United States.

Manufactured in the U.S.

The Federal Acquisition Regulatory Council has not yet defined what is the “end product manufactured in the United States”, including providing ‘‘guidelines to ensure that manufacturing processes involved in production of the end product occur domestically.’’

The Office of Management and Budget is seeking public comments no later than May 23, 2022 on:

• (1) what materials, products or categories of materials or products should be included as “construction materials” for the purposes of the Implementation of the Infrastructure
  Investment and Jobs Act (IIJA);
• (2) what should “all manufacturing processes” mean;
• (3) how should agencies distinguish “construction materials” from “manufactured products” to provide clarity on how to comply with the IIJA’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;
• (5) what is the current and projected capacity of United States manufacturers to supply construction materials that meet the IIJA’s standards and how will this capacity be impacted by the standard provided for “all manufacturing processes” for any relevant construction material;
• (6) whether the commenter anticipates that United States manufacturers will be able to supply construction materials that meet the IIJA’s standards in sufficient and reasonably available quantities and of a satisfactory quality to all infrastructure projects covered by the Act, whether this ability will be impacted by the increased demand for United States manufacturing, whether the commenter foresees supply shortages or other issues for any material and, if so, what federal policies exist that may help alleviate the challenges the commenter identified for all relevant materials;
• (7) how can the IIJA’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 IIJA’s standards; and
• (9) any additional considerations OMB should consider when developing guidance.

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 select ‘‘Office of Management and Budget’’ from the agency menu to submit or view public comments.

Visit MadeInAmerica.gov to learn more about the Made in America Office and review nonavailability procurement waivers.