EPA’s Financial Assistance Infrastructure Programs Subject to the Build America, Buy America Act
Introduction
This report reflects the Environmental Protection Agency’s initial analysis of programs and associated Build America, Buy America (BABA) requirements required by section 70913 of the Infrastructure Investment and Jobs Act (IIJA). As required by section 70913(a)(2) of IIJA, EPA will publish a Notice in the Federal Register advising the public of the availability of the report which will be posted at EPA's Identification of Federal Financial Assistance Infrastructure Programs Subject to the Build America, Buy America Provisions of the Infrastructure Investment and Jobs Act
Our initial analysis errs on the side of inclusiveness, based on the agency’s current understanding of IIJA and the imminent timing requirements for reporting in the Act. After OMB releases implementation guidance subject to section 70915 of IIJA, EPA will work closely with OMB to ensure that appropriate agency programs that are subject to BABA are administered with applicable requirements in place and will adhere to forthcoming OMB guidance. EPA intends to update the initial analysis, if necessary, as additional information regarding EPA financial assistance programs subject to section 70913 reporting requirements becomes available.
Explanatory Notes
The report is in the form of a spread sheet that provides information, by Assistance Listing Number, for all EPA Financial Assistance Programs that may fund "infrastructure projects" as those terms are defined in section 70912(5) and (7) of IIJA. Each column in the spread sheet provides information required by section 70913(b) of IIJA as well as additional information EPA has determined to be relevant.
The spread sheet does not address the domestic preference requirements in 23 U.S.C. 313, 49 U.S.C. 5323(j), 49 U.S.C. 22905(a), and 49 U.S.C. 50101 which are covered in section 70913(b)(2)(A) through (D) of IIJA. These statutes do not apply to EPA. Our report does include information on how EPA implements the American iron and steel requirements in section 603 of the Federal Water Pollution Control Act (33 U.S.C. 1388), section 1452(a)(4) of the Safe Drinking Water Act (42 U.S.C. 300j–12(a)(4)) and section 5035 of the Water Infrastructure Finance and Innovation Act of 2014 (33 U.S.C. 3914) which are applicable to certain EPA financial assistance programs.
EPA has met the requirement in section 70913(b)(3) of IIJA to " . . . provide details on any domestic content procurement preference requirement applicable to an EPA Federal financial assistance program for infrastructure, including the purpose, scope, applicability, and any exceptions and waivers issued under the requirement . . . " in two ways. For the statutory American iron and steel requirements cited above that are applicable to certain EPA financial assistance programs, the agency has provided program specific responses. All other EPA financial assistance programs that may fund infrastructure projects are only subject to the Government-wide domestic preference provisions of 2 CFR 200.322. This regulation requires:
As appropriate and to the extent consistent with law, the non-Federal entity should, to the greatest extent practicable under a Federal award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subawards including all contracts and purchase orders for work or products under this award.
(b) For purposes of this section:
(1) "Produced in the United States" means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
(2) "Manufactured products" means items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
EPA provides recipients with guidance on complying with 2 CFR 200.322 on pp. 13 and 14 of our Best Practice Guide for Procuring Services, Supplies, and Equipment Under EPA Assistance Agreements. The Agency has not provided any waivers of the requirements of 2 CFR 200.322.
In columns M and N of the spread sheet, EPA has provided information on the number of entities participating in the program and the amount of Federal funds available for each program for Fiscal years 2019, 2020 and 2021 pursuant to section 70913(b)(4)(A) and (B) of IIJA. This information is based on monetary assistance awards (obligations) made during each FY per CFDA/Assistance Listing number, unless otherwise noted.
As directed in Executive Order 14005: Ensuring the Future is Made in All of America By All of America’s Workers, EPA is fully committed to promoting the use of domestically produced goods in the performance of EPA financial assistance agreements. The information we developed to meet the reporting requirements in section 70193 of IIJA will assist us in meeting this commitment. Any questions regarding our report should be directed to [email protected] .