Office of Gulf Coast Restoration

U.S Department of the Treasury

June 29, 2022

SUMMARY AND RESPONSE TO PUBLIC COMMENTS ON THE GENERAL 

APPLICABILITY PUBLIC INTEREST ADJUSTMENT PERIOD WAIVER FROM 

APPLICATION OF THE BUILD AMERICA, BUY AMERICA PROVISIONS FOR 

RECIPIENTS OF TREASURY RESTORE ACT, DIRECT COMPONENT GRANTS

Summary of public comments:

Treasury’s Office of Gulf Coast Restoration (“the Office”) received seven comments from 

the public. Four comments were submitted by Gulf Coast states specified in the Resources and 

Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States 

Act (“RESTORE Act”) RESTORE Act as eligible to receive grants under the Direct Component; two 

comments were submitted on behalf of industry groups; and a single comment was provided by an 

individual from the general public. All but one commenter is in support of Treasury issuing an 

adjustment period waiver to waive the application of the Buy America Preference requirements for 

iron, steel, manufactured products, and construction materials for infrastructure projects funded by 

Direct Component grants, to allow Treasury and their recipients and subrecipients sufficient time to 

prepare to implement the requirements for the long-term. Below is a summary of specific items that 

were identified in the comments submitted by the public, and Treasury’s response.

Specific comments:

• Two commenters from Direct Component eligible entities raised questions about the 

applicability of the Build America, Buy America Act (“Act”) enacted on November 15, 2021, 

as part of the Infrastructure Investment and Jobs Act (IIJA) to Direct Component grants 

authorized under the RESTORE Act.

• Commenters also referenced the Agency’s authority to review and approve waivers and one 

commenter questioned the role of Office of Management and Budget in approving waivers.
• Two commenters from Direct Component eligible entities requested that Treasury consider a 

12-month adjustment period waiver to provide Treasury and the Direct Component recipients 

and subrecipients sufficient time to prepare to implement and comply with the new 

requirements of the Act.

• All commenters reinforced the need for Treasury to provide adequate guidance to prepare 

grant recipients and subrecipients for implementing the new requirements and for putting in 

place the necessary controls for compliance.

• An industry group commented that sweeping waivers that delay implementation of the Act

were not envisioned by Congress, are not in the public interest, and are a missed opportunity 

for the investment of millions in infrastructure projects.

Treasury’s Response:

1. Applicability of the Build America, Buy America Act to Grants Awarded under the 

RESTORE Act Direct Component: RESTORE Act programs were not previously required 

to have their recipients comply with domestic content procurement preference requirements. 

Therefore, Treasury assessed the applicability of the Act to investments made from the Trust 

Fund and consulted extensively with OMB’s Office of General Counsel (OGC) and OMB’s

Made in America Office (MIAO). OMB concluded that the Buy America Preference

requirements of the Act apply to the Direct Component. In the discussions between Treasury 

and OMB, Treasury raised the following considerations, which mirrored those raised by two 

commenters on the draft waiver:

a. Do funds obligated under the Treasury RESTORE Act Direct Component fall 

into the category of “post disaster or emergency response expenditures” 

financial assistance programs and are therefore exempt from the Buy America 

Preference requirements of the Act?

Pursuant to section 70912(4)(B) of the Act and section II of OMB 

Memorandum M-22-11, the Buy America Preference does not apply to certain 

expenditures of assistance including “pre and post disaster or emergency response 

expenditures,” that “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, id. § 

5122(1), (2).” Although the RESTORE Act Direct Component meets the first 

condition, in that it is authorized by the RESTORE Act, a statute other than the 

Stafford Act, Treasury’s RESTORE Act Direct Component did not meet the second 

condition necessary to qualify for this exemption. The RESTORE Act was authorized 

in response to a disaster caused by the 2010 explosion on the Deepwater Horizon oil 

rig drilling in the Gulf of Mexico that caused the largest offshore oil spill in the 

United States. The oil spill exacerbated the effects of previous natural disasters, 

caused substantial environmental damage to the Gulf Coast region, and led to 

significant economic impacts on the commercial and recreational fisheries in the 

region. The Secretary of U.S. Department of Commerce declared the event a fisheries 

disaster pursuant to section 312(a) of the Magnuson-Stevens Fishery Conservation 

and Management Act, however this event was not declared a “major disaster” within 

the meaning of the term under the Stafford Act, 42 USC § 5122 and as determined by 

the President. Therefore, OMB-OGC determined that the RESTORE Act Direct 

Component does not qualify for the “post disaster” exemption under the Act. In 

response to the comments received, Treasury will continue to work with OMB during 

the six-month adjustment period to determine if and how Buy America Preference 

(BAP) applies to awards made under the Treasury RESTORE Act Direct Component.

b. Are the funds made available under the Treasury RESTORE Act Direct 

Component for infrastructure projects exempt from the Buy America 

Preference requirements because they are obligations from a Trust Fund and 

not investments of taxpayer dollars?

Although the RESTORE Act Direct Component Program is not a taxpayerfinanced program, it is a federal financial assistance program as defined in 2 CFR § 

200.1. Further, the RESTORE Act specifies the activities, programs, and projects that 

are eligible for grants awarded under the Direct Component, including awards for 

infrastructure projects. As such, those RESTORE Act Direct Component grants that 

fund infrastructure as defined in section 70912(5) of the Act are subject to the BAP 

requirements. Although section 70911 of the Act specifically states that entities 
receiving taxpayer-financed federal assistance should give procurement preference to 

U.S.-made materials and goods as one of the reasons for promulgating the Buy 

America sourcing requirements, section 70912(4)(A) clarifies that the BAP 

requirements apply to all federal financial assistance as defined in 2 CFR § 200.1 for 

infrastructure unless exempt under section 70912(4)(B). OMB Memorandum M-22-

11 further reiterates the point stated in section 70912(4)(A) of the Act that the BAP 

requirements “applies to all Federal financial assistance as defined in section 200.1 of 

title 2, Code of Federal Regulations—whether or not funded through IIJA—where 

funds are appropriated or otherwise made available and used for a project for 

infrastructure” (see page 3 under the section titled “Applicability to Federal Financial 

Assistance Programs”). The Gulf Coast Restoration Trust Fund falls under funds 

“otherwise made available.” 

2. Treasury’s Authority and Consultations with MIAO: Treasury concurs with commenters 

that the Agency has the final approval authority for waivers granted under section 70914 of 

the Act for specific infrastructure projects funded by a RESTORE Act Direct Component 

grant; such a waiver may only be granted after Treasury determines that waiving BAP is 

appropriate because of nonavailability or unreasonable cost of covered materials, or because 

such a project-specific waiver would be in the public interest. In accordance with section 

70914(b) and OMB memo M-22-11 (page 7), “Federal agencies must consult with MIAO for 

proposed waivers with broader applicability (such as a general applicability waiver) before 

posting them for public comment...MIAO will review the proposed waiver to determine if it 

is consistent with applicable law and policy, and will notify the Federal agency of its 

determination.” The purpose of the consultation with MIAO is to identify any opportunities 

to structure the waiver in order to maximize the use of goods, products, and materials 

produced in the U.S. to the greatest extent possible consistent with law. MIAO leads efforts

to coordinate compliance with these requirements across the federal government. However, 

agencies are responsible for approving and rejecting waivers consistent with the Act and 

considers MIAO’s determinations on proposed waivers in doing so. 

3. Length of Proposed Adjustment Period: Two comments submitted by Direct Component 

eligible entities requested Treasury consider implementing a 12-month adjustment period 

waiver because they found six months is insufficient to stand up new policies and procedures, 
hire staff, and continue to deliver on the Office’s core mission. Treasury’s initial 

determination was to have a 12-month waiver, but after consultation with the MIAO it was 

determined that a six-month waiver with the possibility of an extension would be more 

consistent with the objectives of the waiver policy as specified in the Build America, Buy 

America Act and OMB Memorandum M-22-11. Treasury understands the public’s concerns 

and therefore plans to maximize efficiency by standing up policies and procedures that 

follow examples provided by other federal agencies that have long applied domestic content 

procurement preference requirements to iron and steel. Treasury will also use the adjustment 

period to identify and develop other general applicability waivers so that at the end of the sixmonth adjustment period there will continue to be coverage for certain activities. Finally, 

Treasury understands that full implementation of BAP will require the RESTORE Act, Direct 

Component recipients and subrecipients to develop their own policies and procedures and 

that the 2022 hurricane season, June through November, may impact the capacity of entities 

in the Gulf Coast Region to prepare to implement in the proposed timeline. The National 

Oceanic and Atmospheric Administration has predicted that the 2022 Atlantic hurricane 

season will be above-normal. Therefore, in response to public comments noting concern 

about having sufficient time to prepare, Treasury has added an action item to the adjustment 

period schedule described in the waiver. After conclusion of the 2022 Atlantic hurricane 

season, the Office will engage through Treasury’s RESTORE Act Buy America 

Implementation Working Group to assess the capacity and preparedness of Direct 

Component eligible entities to implement the new requirements by the end of the proposed 

six-month adjustment period. If the Office learns that significant recipient and subrecipient 

staff time and resources are being used for post-disaster recovery efforts, Treasury will 

evaluate whether it is in the public interest to extend the adjustment period waiver for all

Direct Component eligible entities in the Gulf Coast Region or approve additional, targeted 

waivers for impacted entities. 

4. Guidance for Treasury RESTORE Act Direct Component Eligible Entities: Treasury 

agrees with the commenters that the Office needs to provide adequate guidance to RESTORE

Act Direct Component recipients and subrecipients. Treasury is proposing to use the waiver 

time to leverage the lessons learned, templates, guidance, and policies and procedures 

developed by the Environmental Protection Agency (EPA) and other federal agencies that 

have long applied domestic content procurement preference requirements to iron and steel; 
the Office has already met with EPA and started this process. Treasury is in the process of 

preparing the first iteration of Frequently Asked Questions (FAQ’s) to provide some certainty 

regarding Treasury’s interpretation of the guidance provided by OMB and its application to 

RESTORE Act, Direct Component awards. In June 2022, the Office initiated regular 

meetings of the RESTORE Act Buy America Implementation Working Group comprised of 

RESTORE Act, Direct Component recipients and subrecipients and through engagement 

with this group will identify, scope, and develop guidance and trainings regarding how to 

include the BAP requirements in bid packages; develop, submit, and obtain requests for 

project-specific waivers; conduct and document market research; monitor contractors for 

compliance; and other activities necessary for successful implementation.

5. Waiver Scope and Intent: Treasury appreciates the commenter’s concern that the Office

has misused their waiver authority to narrow the application of Buy America law. In 

accordance with the Act, Treasury has found that this general applicability adjustment period 

waiver is in the public interest to allow Treasury, Direct Component recipients, and 

subrecipients sufficient time to prepare to implement the requirements of the Act for the 

long-term while continuing to keep projects moving and preventing immediate delays to 

critically important projects to revive and sustain the ecosystems and economy of the Gulf 

Coast Region, including activities to support disaster preparedness and manage climate risk 

by building resilience and promoting sustainable economic development. Treasury is 

proposing this waiver not an alternative to increasing domestic production, but as an 

important tool to fill our knowledge gaps and implement the Buy America Preference

provisions in the most efficient manner in order to promote investment in our domestic 

manufacturing base, strengthen critical supply chains, and position U.S. workers and 

businesses to compete and lead globally in the 21st century. Treasury understands that 

advancing the Made in America objectives is a long game and Treasury plans to move 

forward with sufficient information to implement the new requirements in a way that 

maximizes coordination and collaboration to support long-term investments in domestic 

production. The waiver period will provide Treasury sufficient time to work collaboratively 

with other federal agencies and learn from existing processes established for domestic

content procurement preference requirements for iron and steel. Treasury will use the 

information gained from close engagement with other federal agencies, its financial 
assistance recipients, and OMB to determine the appropriate scope of additional targeted 

waivers that may be necessary to ensure projects stay on time, on task, and on budget.