Guidance for Grants and Agreements, 8374-8378 [2023-02617]

Agencies

• Management and Budget Office

[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 [www.gpo.gov]
[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.

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

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 www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Please contact Dede Rutberg, Office of 
Management and Budget, 202-881-7359, or via email (preferred) at 
[email protected].

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:
     (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?
     (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.
     (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.
     (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.''
     (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.
     (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?
     (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''?
     (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?
     (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?
     (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.
     (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