In August 2023, OMB issued final guidance and an amendment to the Code of Federal Regulations implementing the Build America, Buy America Act (BABAA). The OMB guidance recognizes the Section 70917(c) exemption of “cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives,” as well as wet concrete and asphalt. Implementation challenges continue to persist, as State DOTs and other procurement authorities work to develop compliant procurement regimes. Reasonable guidance from the Federal Highway Administration (FHWA) on BABAA certification forms and processes is needed to remove certification form confusion, inconsistency and delay. Moreover, FHWA guidance is needed to clarify BABAA compliance at the APL/QPLs level. OMB’s intention to regularly convene “inter-agency workgroups” to ensure “that federal agencies implement BABAA in a consistent, uniform, efficient and transparent manner” should include participation by State DOTs to hasten consistent BABAA implementation across all states. 

NSSGA strongly supported the inclusion of Section 11526 in IIJA, which established a working group to examine and produce policies that ensure our nation has sustainable access to quality and proximate aggregate resources. This provision was similar to the bipartisan legislation, Rebuilding Our Communities by Keeping Aggregates Sustainable (ROCKS) Act, which was championed by Rep. Greg Stanton (AZ), Rep. Troy Balderson (OH), Sen. Mark Kelly (AZ) and Sen. Rob Portman (OH). While states like Arizona and Minnesota have acted to institute policies that ensure proper planning to maintain sustainable aggregate supplies, the federal government must also be involved in this planning. This will reduce construction costs and improve environmental outcomes, as the industry works to source materials needed to build the infrastructure funded under IIJA. NSSGA looks forward to working with FHWA, as they form the working group established under Section 11526. 

It is crucial for communities located near federal lands to access the resources necessary for building and maintaining roads, bridges, schools, hospitals, homes and businesses. NSSGA has long opposed unprincipled efforts to withdraw or impede mining rights on federal lands, where aggregate and industrial sand operations responsibly supply these construction materials. Additional legislative or regulatory hurdles, including enacting withdrawal proposals, would significantly increase the cost of public works projects by creating the need to import the stone, sand and gravel required to develop and repair infrastructure and buildings. This unnecessarily increases costs and uncertainty, while the nation confronts economic challenges and inflation.