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Office of Gulf Coast Restoration

U.S Department of the Treasury

February 17, 2023

SUMMARY AND RESPONSE TO PUBLIC COMMENTS ON THE PROPOSED PUBLIC 

INTEREST GENERAL APPLICABILITY WAIVER FROM APPLICATION OF SECTION 

70914(a) OF THE BUILD AMERICA, BUY AMERICA ACT TO THE RESTORE ACT, 

DIRECT COMPONENT INFRASTRUCTURE PROJECTS THAT WERE IN THE FUNDING 

PIPELINE BY MAY 14, 2022

Summary of public comments:

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

public on the proposed waiver: Public Interest General Applicability Waiver from Application of 

Section 70914(a) of the Build America, Buy America Act to the RESTORE Act, Direct 

Component Infrastructure Projects That Were in the Funding Pipeline by May 14, 2022. One 

comment was submitted on behalf of a Gulf Coast state entity and five comments were submitted 

from Florida counties specified in the Resources and Ecosystems Sustainability, Tourist 

Opportunities, and Revived Economies of the Gulf Coast States Act (“RESTORE Act”), as 

eligible to receive grants under the Direct Component program. All comments from RESTORE 

Act, Direct Component eligible entities were in support of Treasury issuing the waiver to waive 

the application of the Buy America Preference requirements for iron, steel, manufactured 

products, and construction materials for infrastructure projects selected through public 

engagement and in the Direct Component funding pipeline by May 14, 2022, the effective date 

of the Build America, Buy America Act (“the Act”). The Office received one submission from a 

corporation that is not in support of the proposed waiver. Below is a summary of specific items 

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

Specific comments: 

1. Five commenters described their entity’s extensive Multiyear Implementation Plan (MIP) 

development process that includes project cost estimation and coordination with diverse 

stakeholders to conduct the rigorous public input process required by Treasury’s 

implementing regulations at 31 CFR §§ 34.303(b)(8) and (b)(9). These comments did not 

request any changes be made to the waiver, but rather reinforced their agreement with 

Treasury’s basis for making the determination that a waiver is required for projects in the 

Direct Component funding pipeline.
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2. One commenter recommended modifying the waiver scope to clarify that Treasury 

should not require additional demonstration of prior public engagement for an activity 

that is already included in an accepted MIP as prior public engagement should be 

presumed for any project already included in a MIP.

3. One commenter 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 and suggested the Direct Component should be excluded on the basis of 

the grants being funded from a Trust Fund and for the purposes of “post 

disaster...expenditures”. 

4. One commenter requested that Treasury extend waiver coverage for any projects awarded 

between January 13, 2023, the day Treasury’s adjustment period waiver expires, and the 

effective date of this waiver.

5. One commenter referenced the Agency’s authority to approve waivers and questioned the 

role of Office of Management and Budget in approving waivers. 

6. One commenter expressed concern regarding the five-year length of the proposed waiver 

period that would delay the expenditure of taxpayer dollars on American steel in 

federally funded infrastructure projects.

Treasury’s Response:

Comment Summary: Requested clarification of the documentation required to 

demonstrate a project is covered by the waiver.

Response: The Office agrees with the comment submitted regarding the documentation required 

to demonstrate that public engagement has occurred and has revised the language in paragraph 

one of the Waiver Scope to read as follows: 

“This waiver will apply to RESTORE Act, Direct Component projects which were already in 

the funding pipeline by May 14, 2022 (the effective date of the Buy America Preference 

requirements), as evidenced by (a) submittal of the project to Treasury in a MIP prior to May 

14, 2022 (subject to subsequent Treasury acceptance of the MIP), or (b) documentation 

indicating that substantial regulatory-required public engagement for the eligible entity’s 

selection and approval of that particular infrastructure project for inclusion in the entity’s 

MIP had already occurred on or before May 14, 2022.”

Comment Summary: Disagreement on the applicability of the Build America, Buy America 

Act to grants awarded under the RESTORE Act Direct Component.

Response: The Office has previously provided a thorough public response on the determination 

that the provisions of the Act apply to expenditures made under Treasury’s RESTORE Act,

Direct Component program. Briefly, we summarize these arguments below.

a. 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,” 
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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).” In 

summary, although the Direct Component program was authorized by the 

RESTORE Act in response to a disaster, the largest offshore oil spill in the United 

States caused by the Deepwater Horizon Oil rig, 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. 

b. Section 70911 of the Act specifically states that entities receiving taxpayerfinanced 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. Although Treasury’s RESTORE Act, Direct Component is 

not a taxpayer-financed program, it is a federal financial assistance program as 

defined in 2 CFR § 200.1 and includes expenditures for infrastructure as defined 

by the Act. Section 70912(4)(A) of the Act clarifies that the Buy America 

Preference requirements apply to all federal financial assistance as defined in 2 

CFR § 200.1 for infrastructure unless exempt under section 70912(4)(B) (which is 

addressed above).

Comment Summary: Request to retroactivity apply the provisions of the waiver.

Response: Treasury agrees that the language of the funding pipeline waiver creates a gap 

between January 13, 2023, the expiration date of the adjustment period waiver, and the effective 

date of this proposed waiver. However, OMB’s Office of General Counsel advised Treasury that 

it is not permissible for proposed waivers to apply retroactively, and therefore Treasury will not 

make this waiver retroactive. Treasury did not obligate any funds under its Direct Component 

program between January 13, 2023, and the effective date of this waiver, February 17, 2023. 

Comment Summary: Treasury has the authority to issue waivers without Office of 

Management and Budget (OMB) approval.

Response: Treasury has previously provided a thorough public response regarding the role of the 

Agency and OMB in granting waivers, including project-level waivers.

The commenter is accurate in stating that Treasury has the authority to waive the application of 

the Buy America preference requirements when the proposed waiver meets the requirements of 

section 70914(b) of the Act. In addition, section VII. of OMB memorandum M-22-11 dated 

April 18, 2022, and titled, “Initial Implementation Guidance on Application of Buy America 

Preference in Federal Financial Assistance Programs for Infrastructure” reiterates that “Federal 

agencies are responsible for processing and approving all waivers including waivers requested by 

recipients and on behalf of subrecipients.” OMB-Made in America Office’s (MIAO) role is to 

review the proposed waivers to ensure they are consistent with applicable law and policy (see 

section 4.(c)(i) of Executive Order 14005 and section VII. of the OMB memorandum M-22-11).

Pursuant to section VII. of OMB memorandum M-22-11, Federal agencies must “consult with 
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MIAO for proposed waivers with broader applicability (such as a general applicability waiver) 

before posting them for public comment.” This consultation is to identify any opportunities to 

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

the United States to the greatest extent possible consistent with law.

Section 4.(c)(ii)(2) of Executive Order 14005 provides that when there is a disagreement or 

conflict between the head of an agency and the Director of the MIAO on a proposed waiver, such 

matter will “be resolved in accordance with procedures that parallel those set forth in section 7 of 

Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review) with respect to 

the Director of the Office of Information and Regulatory Affairs within OMB.” Treasury 

participates in MIAO-led interagency working groups to stay informed on policy updates, and all 

waivers undergo internal legal review to ensure the waiver meets the requirements of Section 

70914(b) of the Act.

Comment Summary: Treasury’s proposed five-year general applicability waiver is not in the 

public interest and could result in taxpayer dollars being spent on imported products.

Response: First, Treasury acknowledges that the proposed waiver will be effective for five years 

and is consistent with section 70914(d)(1) of the Act and the guidance in OMB memorandum M22-11 that general applicability waivers issued by agencies “shall be reviewed every five years

after the date on which the waiver is issued.” We have revised this language in two sections to 

clarify that the agency will evaluate the applicability of the waiver on a shorter timeframe, as 

appropriate. It is important to note that while the waiver may be in place for up to five years, it

does not encompass all Direct Component infrastructure projects during the next five years. It is 

limited to those obligations for awards or monetary amendments to Direct Component-funded 

infrastructure projects for which substantial regulatory-required public engagement occurred 

prior to May 14, 2022. Treasury states in the proposed waiver (page 10) that the Office 

anticipates that most infrastructure projects previously selected through the substantial 

regulatory-required public engagement process and currently in the funding pipeline will be 

awarded a grant within three years. Therefore, in years 4 and 5 of this waiver, Treasury expects 

the majority of Direct Component obligations for infrastructure projects will apply the Buy 

America Preference requirements for iron, steel, manufactured products, and construction 

materials.

To the second point regarding the expenditures of taxpayer funding, Treasury finds that this is 

not applicable to Treasury’s expenditure of funds for Direct Component grants, which are funded 

through the Gulf Coast Restoration Trust Fund that is funded by the administrative and civil 

penalties paid by the parties responsible for the Deepwater Horizon Oil Spill. By granting this 

waiver, Treasury is ensuring that the Gulf Coast states, counties, and parishes impacted by the 

largest offshore oil spill in U.S. history will be able to expend their funding as previously chosen

by the communities of the Gulf Coast. Treasury finds it is in the public interest to grant this 

waiver that reduces the risk of further delays or increased costs that may result from 

implementation of the new Buy America Preference requirements that were not law at the time

when these projects were selected or scoped through the substantial regulatory-required public 

engagement process described in sections 3 and 5 of this waiver. This waiver only covers 
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projects that were included on a Multiyear Implementation Plan or selected through the 

substantial regulatory-required public engagement process by May 14, 2022, the effective date of 

the Act. Infrastructure projects selected after May 14, 2022, will subject be to the Buy America 

Preference requirements, unless a different applicable waiver is in effect at that time. Currently, 

only $914M or roughly one-half of the annual deposits have been made to the Trust Fund and, of 

these, over $450M of the Direct Component allocation is available for future projects that could 

include expenditures for infrastructure. Future projects not currently in the funding pipeline, will 

be subject to the Buy America Preference requirements, if an applicable waiver is not in effect at 

that time and, as the commenter, advocates these funds could result in a potentially significant 

investment in American iron, steel, manufactured products, and construction materials.