Proposed Rule2023-02617
Guidance for Grants and Agreements
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 9, 2023
Issuing agencies
Management and Budget Office
Abstract
The Office of Management and Budget (OMB) is proposing to revise OMB Guidance for Grants and Agreements. The proposed revisions are limited in scope to support implementation of the Build America, Buy America Act provisions of the Infrastructure Investment and Jobs Act; and to clarify existing requirements. These proposed revisions provide further guidance on implementing these statutory requirements, and improve Federal financial assistance management and transparency.
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<title>Federal Register, Volume 88 Issue 27 (Thursday, February 9, 2023)</title>
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[Federal Register Volume 88, Number 27 (Thursday, February 9, 2023)]
[Proposed Rules]
[Pages 8374-8378]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-02617]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 88, No. 27 / Thursday, February 9, 2023 /
Proposed Rules
[[Page 8374]]
OFFICE OF MANAGEMENT AND BUDGET
2 CFR Parts 184 and 200
Guidance for Grants and Agreements
AGENCY: Office of Federal Financial Management, Office of Management
and Budget.
ACTION: Proposed rule; notification of proposed guidance.
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SUMMARY: The Office of Management and Budget (OMB) is proposing to
revise OMB Guidance for Grants and Agreements. The proposed revisions
are limited in scope to support implementation of the Build America,
Buy America Act provisions of the Infrastructure Investment and Jobs
Act; and to clarify existing requirements. These proposed revisions
provide further guidance on implementing these statutory requirements,
and improve Federal financial assistance management and transparency.
DATES: Comments are due March 13, 2023. 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 business
confidential information provided. Do not include any information you
would not like to be made publicly available.
ADDRESSES: Comments on this proposal must be submitted electronically
before the comment closing date to <a href="http://www.regulations.gov">www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Please contact Dede Rutberg, Office of
Management and Budget, 202-881-7359, or via email (preferred) at
<a href="/cdn-cgi/l/email-protection#2e6a474f404f005d005c5b5a4c4b5c496e41434c004b415e00494158"><span class="__cf_email__" data-cfemail="9adef3fbf4fbb4e9b4e8efeef8ffe8fddaf5f7f8b4fff5eab4fdf5ec">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
On November 15, 2021, President Biden signed into law the
Infrastructure Investment and Jobs Act (``IIJA''), Public Law 117-58,
which includes the Build America, Buy America Act (``the Act''). The
Act required by May 14, 2022--180 days after the enactment of the
IIJA--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.'' 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 offered in, the United States.''
The Act provides statutory authorities for the Made in America
Office (MIAO) in OMB to maximize and enforce compliance with Made in
America Laws. On April 18, 2022, OMB released M-22-11 Initial
Implementation Guidance on Application of Buy America Preference in
Federal Financial Assistance Programs for Infrastructure (OMB
Guidance), which provides implementation guidance to Federal agencies
on the application of: (1) a ``Buy America'' preference to Federal
financial assistance programs for infrastructure; and (2) a transparent
process to waive such a preference, when necessary and consistent with
the law. The OMB Guidance also provides ``preliminary and non-binding''
guidance on the definition of construction materials, while OMB
obtained stakeholder input on potential refinement of that definition
and standards for manufacturing processes.
OMB is proposing a new part 184 in 2 CFR chapter I to support
implementation of the Act, and clarify existing requirements within 2
CFR 200.322. The proposed revisions are intended to improve uniformity
and consistency in the implementation of ``Build America, Buy America''
(BABA) requirements across the Government.
OMB proposes these revisions after consultation and in
collaboration with agency representatives. In addition, OMB solicited
feedback from the public and the broader Federal financial assistance
community through a Notice of Listening Sessions and Request for
Information (87 FR 23888) published on April 21, 2022, for construction
materials. OMB made changes to the proposed revisions based on feedback
received, as appropriate. OMB also considered feedback from requests
for information published by the Department of Transportation on July
28, 2022 (87 FR 45396), and the Department of Housing and Urban
Development on June 1, 2022 (87 FR 33193).
Changes Proposed by OMB and Expected Impact
OMB is proposing a new part 184 in 2 CFR chapter I and revisions to
2 CFR 200.322, Domestic preferences for procurements. The revision adds
a new part addressing the Buy America Preference for all awards with
infrastructure expenditures set forth in section 70914 of the Act. The
new part generally aligns with OMB Guidance provided in OMB memorandum
M-22-11. The new part also provides definitions for the purposes of 2
CFR part 184 and a common framework for applying Buy America
Preferences to Federal Financial Assistance. In so doing, these
revisions will provide consistent implementation of Buy America
requirements for infrastructure projects Government-wide.
The new part 184 includes guidance for determining the cost of
manufactured products, and proposes to use the definition of ``cost of
components'' in the Federal Acquisition Regulation (FAR) (48 CFR
25.003) that is used for Federal procurement. Using this definition of
``cost of components'' for determining the cost of manufactured
products for Federal Financial Assistance aims to provide consistent
and clear market requirements for industry to meet one standard for
determining the cost of components of manufactured products. OMB is
soliciting specific feedback on guidance proposed in this section.
OMB is required by the Act to issue standards that define ``all
manufacturing processes'' in the case of construction materials. While
OMB memorandum M-22-11 provides ``preliminary and non-binding''
guidance on the definition of construction materials, the new part 184
includes OMB's proposed standards for ``all manufacturing processes''
for the manufacture of construction materials. These proposed standards
are based on industry feedback, agency consultation, and market
research
[[Page 8375]]
conducted for each construction material.
OMB is proposing to modify 2 CFR 200.322 to direct the Federal
agency to the new part in chapter I (2 CFR part 184) for guidance on
all awards that include infrastructure projects.
Executive Orders 12866 and 13563
Executive Orders (EOs) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). This is
not a significant action under E.O. 12866.
Paperwork Reduction Act
This guidance does not contain a requirement for information
collection and thus the Paperwork Reduction Act does not apply.
Request for Comments Regarding Proposed 2 CFR Part 184 Amendments
OMB requests public comment on the proposed guidance. Public
comments are particularly invited on:
<bullet> (1) Cost of components. In determining the ``cost of
components'' for manufactured products for purposes of this guidance,
should OMB adopt a definition based on the definition provided in the
FAR at 48 CFR 25.003?
[cir] We note that under 48 CFR 25.003, Cost of components means--
1. For components purchased by the contractor, the acquisition
cost, including transportation costs to the place of incorporation into
the end product or construction material (whether or not such costs are
paid to a domestic firm), and any applicable duty (whether or not a
duty-free entry certificate is issued); or
2. For components manufactured by the contractor, all costs
associated with the manufacture of the component, including
transportation costs as described in item 1., plus allocable overhead
costs, but excluding profit. Cost of components does not include any
costs associated with the manufacture of the end product.
[cir] The definition for ``cost of components'' at 48 CFR 25.003
refers to components ``purchased by the contractor'' and ``components
manufactured by the contractor.'' In the context of Federal financial
assistance for an infrastructure project, is the ``contractor'' the
appropriate subject for OMB to use in the standard proposed in this
guidance? Should OMB delete ``by the contractor'' when used in the
standard in this guidance? Should OMB insert an alternate subject in
the standard? For example, the ``manufacturer'' or some other entity?
[cir] The definition for ``cost of components'' at 48 CFR 25.003
uses certain terms defined in the FAR but not in this proposed guidance
including ``end product'' and ``component.'' ``End product'' is defined
in the FAR to mean ``those articles, materials, and supplies to be
acquired for public use.'' 48 CFR 25.003. ``Component'' is defined in
the FAR to mean ``an article, material, or supply incorporated directly
into an end product or construction material.'' Id. In the context of
manufactured products, should OMB use the FAR definitions for ``end
product'' and ``component''? If OMB uses the FAR definitions for these
terms, should it make any conforming changes for this guidance or
changes to provide additional clarity?
[cir] The definition for ``cost of components'' at 48 CFR 25.003
includes a reference to ``construction materials.'' Because the
standard proposed in this guidance will only apply to manufactured
products, OMB proposes to delete the reference to construction
materials.
[cir] OMB intends to adopt the ``cost of components'' standard from
FAR for manufactured products in this guidance for Federal Financial
Assistance with minimal modification to ensure that there are
consistent and clear market requirements for industry to meet one
standard for determining the cost of components of manufactured
products. Is there a reason OMB should apply a different standard?
<bullet> (2) Other construction material standards. What, if any,
additional construction materials should be included in the proposed
guidance? OMB requests feedback on the inclusion of the following
construction materials and proposed standards for manufacturing
processes for those construction materials to determine if they are
produced in the United States:
[cir] Coatings (e.g., paint, stain, and other coatings applied at
the work site): All manufacturing processes, from initial mixing of
pigments, resin, solvents, and additives through final canning or other
packaging, occurred in the United States.
[cir] Brick: All manufacturing processes, from initial tempering
and forming through cooling and de-hacking, occurred in the United
States.
[cir] Engineered wood products: Are engineered wood products
covered under the definition of ``lumber,'' or are engineered wood
products a different category of construction material? If a separate
category, should engineered wood products be defined as: ``All
manufacturing processes, from initial debarking through pressing,
trimming, and sanding of glued sheets or boards, occurred in the United
States.''
[cir] Other than those specifically listed, should other
construction materials and subsequent manufacturing processes be
included in the category of construction materials? We note that a
general, catchall category of ``other construction materials'' is not a
feasible option because it would not allow recipients to distinguish
between ``manufactured products'' and ``construction materials'' when
determining what standard applies to an item. If other specific
construction materials should be included, please identify them and the
standards that should apply to them.
<bullet> (3) Proposed definition of construction materials. Is
additional guidance needed on the proposed definition of construction
materials? In this proposed guidance, OMB only intends to classify
materials that consist of only one or more of the construction
materials listed in Sec. 184.3(c)(1) as construction materials.
However, OMB also seeks to avoid disqualifying construction materials
with only de minimis additions of non-construction materials. For
example, if de minimis additions of non-construction materials do not
add significant value to, or substantially transform, the otherwise
qualifying construction material, they should not change the
categorization of the material under this guidance.
<bullet> (4) Definition for ``predominantly'' iron or steel items.
To be consistent with certain existing Buy America and Buy American
laws and policies, or for other reasons, should OMB adopt a definition
of ``predominantly'' iron or steel items? Other reasons for providing
such a definition may include efficiency and to help differentiate
between categories of products. What, if any, definition of the term
``predominantly'' should be provided in this guidance in the case of
iron or steel products, as reflected in the definitions of
``manufactured products'' and ``iron and steel products'' in Sec.
184.3 of this guidance. OMB is specifically interested in feedback on
whether it should adopt a definition of the term ``predominantly''
similar to the definition of the term ``predominantly of iron or steel
or a combination of both'' in the FAR at 48 CFR 25.003 so that Federal
procurement requirements through the FAR are aligned with the uniform
guidance in order to reduce burden on industry. The definition of
``predominantly of iron or steel or a combination of both'' in the FAR
at 48 CFR 25.003 means that the cost of the iron and steel content
exceeds 50
[[Page 8376]]
percent of the total cost of all its components; and also addresses the
meaning of ``the cost of iron and steel.''
<bullet> (5) How to distinguish between categories of products. Is
further guidance needed on how to distinguish between steel or iron
products, manufactured products, and construction materials? For
example, OMB Guidance explained that items that consist of two or more
of the listed construction materials that have been combined together
through a manufacturing process, and items that include at least one of
the listed construction materials combined through a manufacturing
process with a material that is not listed as a construction material,
should be treated as manufactured products, rather than as construction
materials. Relative to the OMB Guidance, OMB has proposed a modified
approach in this guidance for distinguishing among categories of
products. That approach is set forth in the proposed definitions under
Sec. 184.3 and in particular under the definition for construction
materials at Sec. 184.3(c). OMB seeks feedback on the approach
proposed in this guidance relative to the approach in the earlier OMB
Guidance.
<bullet> (6) Meaning of composite building materials. The
definition of ``construction materials'' in Sec. 184.3 of this
proposed guidance includes ``composite building materials'' as an
example of ``plastic and polymer-based products.'' This is based on the
congressional findings on ``common construction materials'' in section
70911(5) of the Act. Section 184.6 of the proposed guidance includes
``composite building materials'' as a stand-alone category of
``construction materials.'' Should OMB include ``composite building
materials'' as a sub-category of plastic and polymer-based products or
as a stand-alone category? Is further guidance needed on the meaning of
the term to distinguish it from ``plastic and polymer-based products''
in general? If additional guidance is needed, how should ``composite
building materials'' be defined?
<bullet> (7) Fiber optic cables and optical fibers. Congress
identified the elements of a completed fiber optic cable as
construction materials for which all manufacturing processes must occur
in the United States. The definition of ``construction materials'' in
Sec. 184.3 of this proposed guidance includes ``polymers used in fiber
optic cables'' as an example of ``plastic and polymer-based products.''
This is based on the congressional findings on ``common construction
materials'' in section 70911(5) of the Act. OMB also proposes in this
guidance that the final fiber optic cable and optical fibers be treated
as construction materials. Sections 184.3 and 184.6 of the proposed
guidance include ``fiber optic cable'' and ``optical fibers'' as two
stand-alone categories of ``construction materials.'' Is there any
reason the standards in Sec. 184.6 of this proposed guidance should be
applied differently for optical fibers that include both plastic and
polymer-based components and glass components? Is further guidance
needed on the meaning of the terms ``fiber optic cable'' and ``optical
fibers''?
<bullet> (8) Standards applicable to optical fiber and optic glass.
The definition of ``construction materials'' in Sec. 184.3 of this
proposed guidance includes ``optic glass'' as an example of ``glass
products.'' This is based on the congressional findings on ``common
construction materials'' in section 70911(5) of the Act. Section 184.6
of the proposed guidance does not include a stand-alone category for
``optic glass,'' but does include a stand-alone category for ``optical
fiber.'' Is any additional guidance needed on this topic?
<bullet> (9) Aggregates. Section 70917(c) of the Act provides that
the term construction materials shall not include the following
materials: (i) cement and cementitious materials; (ii) aggregates such
as stone, sand, or gravel; or (iii) aggregate binding agents or
additives (the ``Excluded Materials''). However, the Act does not
specify whether these Excluded Materials should be entirely excluded
from coverage under Buy America Preferences. How should OMB treat
Excluded Materials in the context of the manufactured product Buy
America Preference under this guidance? For example, how should the
guidance treat Excluded Materials made of a combination of raw
materials or combined with other raw materials to create a material
that has different properties than the properties of the individual raw
materials? In defining manufactured products in this guidance in Sec.
184.3, should OMB supplement the proposed definition by adding the
standard under 2 CFR 176.140(a)(1), which defines a ``manufactured
good'' as ``a good brought to the construction site for incorporation
into the building or work that has been--(i) Processed into a specific
form and shape; or (ii) Combined with other raw material to create a
material that has different properties than the properties of the
individual raw materials.'' That is, should OMB exclude raw aggregates
(such as stone, sand, or gravel) unless they have been processed into a
specific form or shape or combined with other raw materials, such as
combining them with cement powder and water to produce precast concrete
products? How should OMB treat cement and cementitious materials before
they are processed into a specific form and shape?
<bullet> (10) Specific sections of proposed guidance. Please
provide suggestions on specific sections of the proposed guidance.
Please provide clarity as to the section of the guidance that each
comment is referencing by beginning each comment with the section
number in brackets. For example; if the comment is on 2 CFR 184.1
include the following before the comment: 184.1.
<bullet> (11) Reducing burden on recipients. Please provide
suggestions for reducing burden for recipients.
List of Subjects
2 CFR Part 184
Administration of Federal financial assistance, Administrative
practice and procedure, Federal financial assistance programs.
2 CFR Part 200
Administration of Federal financial assistance, Administrative
practice and procedure, Federal financial assistance programs.
For the reasons stated in the preamble, the Office of Management
and Budget proposes to amend 2 CFR subtitle A as follows:
0
1. Add part 184, consisting of Sec. Sec. 184.1 through 184.8, to read
as follows:
PART 184--BUY AMERICA PREFERENCES FOR INFRASTRUCTURE PROJECTS
Sec.
184.1 Purpose of this part.
184.2 Applicability.
184.3 Definitions.
184.4 Applying the Buy America Preference to a Federal award.
184.5 Determining the cost of components for manufactured products.
184.6 Construction material standards.
184.7 Federal awarding agency's issuance of a Buy America Preference
waiver.
184.8 Exemptions to the Buy America Preference.
Authority: Pub. L. 117-58, 135 Stat. 429.
Sec. 184.1 Purpose of this part.
This part provides guidance to Federal awarding agencies on the
implementation of the Buy America Preference applicable to Federal
financial assistance set forth in part I of subtitle A, Buy America
Sourcing Preferences, of the Build America, Buy America Act included in
the Infrastructure Investment and Jobs Act (Pub. L. 117-58) at division
G, title IX, subtitle A, part I, sections 70912 through 70917. Section
70914 of the
[[Page 8377]]
Build America, Buy America Act requires the head of each Federal agency
to ensure that none of the funds made available for a Federal award for
an infrastructure project may be obligated unless all of the iron,
steel, manufactured products, and construction materials used in the
project are produced in the United States.
Sec. 184.2 Applicability.
This part applies to a Federal award for an infrastructure project
only to the extent that a Buy America Preference meeting or exceeding
the requirements of section 70914 of the Build America, Buy America Act
did not apply to iron, steel, manufactured products, and construction
materials in the Federal financial assistance program under which the
Federal award is provided before November 15, 2021.
Sec. 184.3 Definitions.
Terms not defined in this part shall have the same meaning as
provided in 2 CFR part 200, subpart A. As used in this part:
Build America, Buy America Act means division G, title IX, subtitle
A, part I, sections 70901 through 70927 of the Infrastructure
Investment and Jobs Act (Pub. L. 117-58).
Buy America Preference means the ``domestic content procurement
preference'' set forth in section 70914 of the Build America, Buy
America Act, which requires the head of each Federal agency to ensure
that none of the funds made available for a Federal award for an
infrastructure project may be obligated unless all of the iron, steel,
manufactured products, and construction materials used in the project
are produced in the United States.
Construction materials means articles, materials, or supplies
incorporated into an infrastructure project that consist of only one or
more of the following materials, except as provided in paragraph (2) of
this definition:
(1)(i) Non-ferrous metals;
(ii) Plastic and polymer-based products (including
polyvinylchloride, composite building materials, and polymers used in
fiber optic cables);
(iii) Glass (including optic glass);
(iv) Fiber optic cable;
(v) Optical fiber;
(vi) Lumber; or
(vii) Drywall.
(2) For an item that consists only of a combination of one or more
of the construction materials listed in paragraph (1) of this
definition and binding agents, any binding agents shall be disregarded,
and each construction material must meet the Buy America Preference
standard defined in Sec. 184.6.
Infrastructure project is any activity related to the construction,
alteration, maintenance, or repair of infrastructure in the United
States regardless of whether infrastructure is the primary purpose of
the project.
Iron or steel products means articles, materials, or supplies
incorporated into an infrastructure project that consist wholly or
predominantly of iron, steel, or both.
Manufactured products means articles, materials, or supplies
incorporated into an infrastructure project that:
(1) Do not consist wholly or predominantly of iron or steel or
both; and
(2) Are not categorized as a construction material (as defined in
this section).
Produced in the United States means the following, for:
(1) Iron and steel products. All manufacturing processes, from the
initial melting stage through the application of coatings, occurred in
the United States.
(2) Manufactured products. (i) The 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. The costs of components of a manufactured
product are determined according to Sec. 184.5.
(3) Construction materials. All manufacturing processes for the
construction material occurred in the United States. See Sec. 184.6
for more information on the meaning of ``all manufacturing processes''
for specific construction materials.
Sec. 184.4 Applying the Buy America Preference to a Federal award.
(a) The Buy America Preference applies to awards where funds are
appropriated or otherwise made available for infrastructure projects in
the United States, regardless of whether infrastructure is the primary
purpose of the award.
(b) All Federal awards with infrastructure projects must include
the Buy America Preference in the terms and conditions. The Buy America
Preference must be included in all subawards, contracts and purchase
orders for the work performed, or products supplied under the award.
The terms and conditions of a Federal award flow down to subawards to
subrecipients unless a particular section of the terms and conditions
of the Federal award specifically indicate otherwise.
(c) Infrastructure encompasses public infrastructure projects which
includes at a minimum, the structures, facilities, and equipment for,
in the United States, roads, highways, and bridges; public
transportation; dams, ports, harbors, and other maritime facilities;
intercity passenger and freight railroads; freight and intermodal
facilities; airports; water systems, including drinking water and
wastewater systems; electrical transmission facilities and systems;
utilities; broadband infrastructure; and buildings and real property;
and structures, facilities, and equipment that generate, transport, and
distribute energy including electric vehicle (EV) charging.
(d) The Federal awarding agency should interpret the term
``infrastructure'' broadly and consider the description provided in
paragraph (c) of this section as illustrative and not exhaustive. When
determining if a particular project of a type not listed in the
description in paragraph (c) constitutes ``infrastructure,'' the
Federal awarding agency should consider whether the project will serve
a public function, including whether the project is publicly owned and
operated, privately operated on behalf of the public, or is a place of
public accommodation, as opposed to a project that is privately owned
and not open to the public.
Sec. 184.5 Determining the cost of components for manufactured
products.
In determining whether the cost of components for manufactured
products is greater than 55 percent of the total cost of all
components, use the following definitions:
(a) For components purchased by the manufacturer, the acquisition
cost, including transportation costs to the place of incorporation into
the end product (whether or not such costs are paid to a domestic
firm), and any applicable duty (whether or not a duty-free entry
certificate is issued); or
(b) For components manufactured by the manufacturer, all costs
associated with the manufacture of the component, including
transportation costs as described in paragraph (a) of this section,
plus allocable overhead costs, but excluding profit. Cost of components
does not include any costs
[[Page 8378]]
associated with the manufacture of the end product.
Sec. 184.6 Construction material standards.
The Buy America Preference applies to the following construction
materials used in infrastructure projects. Each construction material
is followed by a standard for the material to be considered ``produced
in the United States.''
(a) Non-ferrous metals. All manufacturing processes, from initial
smelting or melting through final shaping, coating, and assembly,
occurred in the United States.
(b) Plastic and polymer-based products. All manufacturing
processes, from initial combination of constituent, plastic or polymer-
based inputs until the item is in a form in which it is delivered to
the work site and incorporated into the project, occurred in the United
States.
(c) Composite building materials. All manufacturing processes, from
initial combination of constituent materials until the composite
material is in a form in which it is delivered to the work site and
incorporated into the project, occurred in the United States.
(d) Glass. All manufacturing processes, from initial batching and
melting of raw materials through annealing, cooling, and cutting,
occurred in the United States.
(e) Fiber optic cable. All manufacturing processes, from the
initial preform fabrication stage through fiber stranding and
jacketing, occurred in the United States.
(f) Optical fiber. All manufacturing processes, from the initial
preform fabrication stage through fiber stranding, occurred in the
United States.
(g) Lumber. All manufacturing processes, from initial debarking
through treatment and planing, occurred in the United States.
(h) Drywall. All manufacturing processes, from initial blending of
mined or synthetic gypsum plaster and additives through cutting and
drying of sandwiched panels, occurred in the United States.
Sec. 184.7 Federal awarding agency's issuance of a Buy America
Preference waiver.
(a) A Federal awarding agency may waive the application of the Buy
America Preference in any case in which it finds that:
(1) Applying the Buy America Preference would be inconsistent with
the public interest (a ``public interest waiver'');
(2) Types of iron, steel, manufactured products, or construction
materials are not produced in the United States in sufficient and
reasonably available quantities or of a satisfactory quality (a
``nonavailability waiver''); or
(3) The inclusion of iron, steel, manufactured products, or
construction materials produced in the United States will increase the
cost of the overall project by more than 25 percent (an ``unreasonable
cost waiver'').
(b) A request from a non-Federal entity to waive the application of
the Buy America Preference must be provided to the Federal awarding
agency in writing. Federal awarding agencies shall provide waiver
request submission instructions and guidance on the format, contents,
and supporting materials required for waiver requests from non-Federal
entities.
(c) Before issuing a waiver, the Federal awarding agency must:
(1) Prepare a detailed written explanation for the proposed
determination to issue the waiver, including for those proposed waivers
based on a request from a non-Federal entity;
(2) Make the proposed waiver and the detailed written explanation
publicly available in an easily accessible location on a website
designated by the Federal awarding agency and the Office of Management
and Budget;
(3) Provide a period of not less than 15 calendar days for public
comment on the proposed waiver; and
(4) Before finalizing a waiver, submit the waiver determination to
the Office of Management and Budget Made in America Office for final
review pursuant to Executive Order 14005 and sections 70923(b)(2) and
70937 of the Infrastructure Investment and Jobs Act (Pub. L. 117-58).
(d) The review of existing waivers of general applicability are
subject to a minimum 30-day public comment period.
Sec. 184.8 Exemptions to the Buy America Preference.
(a) The Buy America Preference does not apply to expenditures for
assistance authorized under section 402, 403, 404, 406, 408, or 502 of
the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5170a, 5170b, 16 5170c, 5172, 5174, or 5192) relating to a major
disaster or emergency declared by the President under section 401 or
501, respectively, of such Act (42 U.S.C. 5170, 5191) or pre and post
disaster or emergency response expenditures.
(b) ``Pre and post disaster or emergency response expenditures''
consist of expenditures for financial assistance that are:
(1) Authorized by statutes other than the Stafford Act, 42 U.S.C.
5121 et seq.; and
(2) Made in anticipation of or response to an event or events that
qualify as an ``emergency'' or ``major disaster'' within the meaning of
the Stafford Act, 42 U.S.C. 5122(1), (2).
PART 200--UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND
AUDIT REQUIREMENTS FOR FEDERAL AWARDS
0
2. The authority citation for part 200 continues to read as follows:
Authority: 31 U.S.C. 503.
0
3. Amend Sec. 200.322 by adding paragraph (c) to read as follows:
Sec. 200.322 Domestic preferences for procurements.
* * * * *
(c) Federal awarding agencies providing Federal financial
assistance for infrastructure projects must comply with the Buy America
Preferences set forth in 2 CFR part 184.
Deidre A. Harrison,
Deputy Controller, Office of Federal Financial Management.
[FR Doc. 2023-02617 Filed 2-8-23; 8:45 am]
BILLING CODE 3110-01-P
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</html>Indexed from Federal Register on February 9, 2023.
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