40980 Federal Register / Vol. 86, No. 144 / Friday, July 30, 2021 / Proposed Rules 

Authority: 42 U.S.C. 7401 et seq. 

Subpart AA—Missouri 

■ 2. In § 52.1320, the table in paragraph 

(e) is amended by adding the entry 

‘‘(79)’’ in numerical order to read as 

follows: 

§ 52.1320 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPOVED MISSOURI NONREGULATORY SIP PROVISIONS

Name of nonregulatory SIP provision Applicable geographic or nonattainment area 

State 

submittal 

date 

EPA approval date Explanation 

*******

(79) Revisions to St. Louis 2008 8- 

Hour Ozone Maintenance Plan.

St. Louis Area: Missouri counties of 

Franklin, Jefferson, St. Charles, 

and St. Louis along with the City 

of St. Louis.

11/12/2019 [Date of publication of the final rule 

in the Federal Register], 

[Federal Register citation of the 

final rule].

This action replaces Maintenance 

plans for the following ozone 

NAAQS: 1979 1-hour (68 FR 

25413),1997 8-hour (80 FR 

9207), 2008 8-hour (83 FR 

47572). 

*******

[FR Doc. 2021–15731 Filed 7–29–21; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 1, 25, and 52 

[FAR Case 2021–008; Docket No. FAR– 

2021–0008, Sequence No. 1] 

RIN 9000–AO22 

Federal Acquisition Regulation: 

Amendments to the FAR Buy American 

Act Requirements 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Proposed rule. 

SUMMARY: DoD, GSA, and NASA are 

proposing to amend the Federal 

Acquisition Regulation (FAR) to 

implement an Executive order (E.O.) 

addressing domestic preferences in 

Government procurement. 

DATES: Interested parties should submit 

comments to the Regulatory Secretariat 

Division at one of the addresses shown 

below on or before September 28, 2021 

to be considered in the formulation of 

a final rule. 

Public Meeting: A virtual public 

meeting will be held on August 26, 

2021, from 9 a.m. to 3 p.m., Eastern 

Standard Time. The public meeting will 

end at the stated time, or when the 

discussion ends, whichever comes first. 

For more details, see section V of the 

preamble. 

ADDRESSES: Submit comments in 

response to FAR Case 2021–008 to 

https://www.regulations.gov. Submit 

comments via the Federal eRulemaking 

portal by searching for ‘‘FAR Case 2021– 

008’’. Select the link ‘‘Comment Now’’ 

that corresponds with ‘‘FAR Case 2021– 

008.’’ Follow the instructions provided 

on the screen. Please include your 

name, company name (if any), and 

‘‘FAR Case 2021–008’’ on your attached 

document. If your comment cannot be 

submitted using https://

www.regulations.gov, call or email the 

points of contact in the FOR FURTHER

INFORMATION CONTACT section of this 

document for alternate instructions. 

Instructions: Please submit comments 

only and cite ‘‘FAR Case 2021–008’’ in 

all correspondence related to this case. 

Comments submitted in response to 

this notice will be made publicly 

available and are subject to disclosure 

under the Freedom of Information Act. 

For this reason, please do not include in 

your comments information of a 

confidential nature, such as sensitive 

personal information or proprietary 

information, or any information that you 

would not want publicly disclosed 

unless you follow the instructions 

below for confidential comments. 

Summary information of the public 

comments received, including any 

specific comments, will be posted on 

regulations.gov. 

All filers using the portal should use 

the name of the person or entity 

submitting comments as the name of 

their files, in accordance with the 

instructions below. Anyone submitting 

business confidential/proprietary 

information should clearly identify any 

business confidential/proprietary 

portion at the time of submission, file a 

statement justifying nondisclosure and 

referencing the specific legal authority 

claimed, and provide a nonconfidential/non-proprietary version of 

the submission. 

Any business confidential 

information should be in an uploaded 

file that has a file name beginning with 

the characters ‘‘BC.’’ Any page 

containing business confidential 

information must be clearly marked 

‘‘BUSINESS CONFIDENTIAL/ 

PROPRIETARY’’ on the top of that page. 

The corresponding non-confidential/ 

non-proprietary version of those 

comments must be clearly marked 

‘‘PUBLIC.’’ The file name of the nonconfidential version should begin with 

the character ‘‘P.’’ The ‘‘BC’’ and ‘‘P’’ 

should be followed by the name of the 

person or entity submitting the 

comments or rebuttal comments. All 

filers should name their files using the 

name of the person or entity submitting 

the comments. Any submissions with 

file names that do not begin with a ‘‘BC’’ 

will be assumed to be public and will 

be made publicly available through 

https://www.regulations.gov. 

To confirm receipt of your 

comment(s), please check https://

www.regulations.gov, approximately 

two to three days after submission to 

verify posting. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Mahruba Uddowla, Procurement 

Analyst, at 703–605–2868 or by email at 

mahruba.uddowla@gsa.gov, for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat Division at 202–501–4755 or 

GSARegSec@gsa.gov. Please cite FAR 

Case 2021–008. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On January 25, 2021, the President 

signed Executive Order (E.O.) 14005, 


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Federal Register / Vol. 86, No. 144 / Friday, July 30, 2021 / Proposed Rules 40981 

Ensuring the Future Is Made in All of 

America by All of America’s Workers 

(86 FR 7475, January 28, 2021). The E.O. 

contemplates a series of actions to 

enable the United States Government to 

maximize the use of goods, products, 

and materials produced in the United 

States in order to strengthen and 

diversify domestic supplier bases and 

create new opportunities for U.S. firms 

and workers. These actions include (i) 

regulatory amendments to the 

implementation of the Buy American 

Act in FAR part 25 to fit the current 

realities of the American economy; (ii) 

the creation of a Made in America Office 

within the Office of Management and 

Budget to provide centralized, strategic, 

and holistic management of domestic 

sourcing activities across Federal 

procurement, Federal financial 

assistance, and maritime policies; (iii) a 

public website with information on all 

proposed waivers to the Buy American 

Act and other Buy American Laws, as 

defined in the E.O., that helps more U.S. 

firms access Federal contracting and 

provides data to the Made in America 

Office to inform policy development for 

domestic sourcing; and (iv) a review by 

the Federal Acquisition Regulatory 

Council (FAR Council), in consultation 

with the Made in America Office, of the 

longstanding statutory exemption from 

the Buy American Act for commercial 

information technology (IT) to 

determine if the original purpose or 

other goals of the exemption remain 

relevant in the current economic and 

national security environment. 

Collectively, these and other efforts 

called for by the E.O. will promote 

greater economic and national security 

and further the Administration’s 

commitment to build back a stronger 

domestic manufacturing base, create 

good jobs, and ensure the U.S. economy 

remains strong, resilient, and ready to 

meet the challenges of the future. 

Strengthening implementation of the 

Buy American Act will send clear 

demand signals to domestic producers, 

spurring strategic investments in 

domestic supply chains. 

This proposed rule addresses section 

8 of the E.O., which requires the FAR 

Council to strengthen the impact of the 

Buy American Act. The dollars the 

Federal Government spends on goods 

and services are a powerful tool to 

support American workers and 

manufacturers. Contracting alone 

accounts for nearly $600 billion in 

Federal spending. Federal law requires 

government agencies, in some 

circumstances, to give preferences to 

American firms; however, these 

preferences have not always been 

implemented consistently or effectively. 

Congress passed the Buy American Act 

during the Great Depression to foster 

American industry by protecting it from 

foreign competition for Federal 

procurement contracts. The Buy 

American Act is codified at 41 U.S.C. 

chapter 83 as the Buy American statute 

and requires public agencies to procure 

articles, materials, and supplies that 

were mined, produced, or manufactured 

in the United States, substantially all 

from domestic components, subject to 

exceptions for nonavailability of 

domestic products, unreasonable cost of 

domestic products, and when it would 

not be in the public interest to buy 

domestic products. Additional 

exceptions have been added over time, 

such as where trade agreements apply, 

and for commissary resale, micropurchases, and commercial information 

technology. 

Currently FAR part 25, which 

implements the Buy American statute 

and all related Executive Orders, 

provides guidance on determining 

whether solicited ‘‘construction 

material’’ or ‘‘end products’’ are 

‘‘domestic’’—that is, whether they were 

mined, produced, or manufactured in 

the United States, substantially from 

components mined, produced, or 

manufactured in the United States. The 

determination of whether a 

manufactured end product or 

construction material qualifies as 

domestic is made using a two-part test: 

1. The end product or construction 

material must be manufactured in the 

United States. 

2. A certain percentage of all 

component parts (determined by cost of 

the components) must also be mined, 

produced, or manufactured in the 

United States—a requirement known as 

the ‘‘component test’’ until early 2021, 

when it was redesignated the ‘‘domestic 

content test’’ to be consistent with 

terminology used in E.O. 13881, 

Maximizing Use of American-Made 

Goods, Products, and Materials. For an 

end product that does not consist 

wholly or predominantly of iron or steel 

or a combination of both, the cost of 

domestic components must exceed 55 

percent of the cost of all components; 

the test is waived for acquisitions of 

commercially available off-the-shelf 

(COTS) items. For an end product that 

consists wholly or predominantly of 

iron or steel or a combination of both, 

the cost of foreign iron and steel must 

constitute less than 5 percent of the cost 

of all the components. That test is not 

waived for COTS items, except for 

COTS fasteners. 

The Buy American statute does not 

prohibit the purchase of foreign end 

products or use of foreign construction 

material. Instead, it encourages the use 

of domestic end products and 

construction material by imposing a 

price preference for them. Under the 

current FAR, large businesses offering 

domestic supplies receive a 20 percent 

price preference, and small businesses 

receive a 30 percent price preference. 

The Buy American restrictions do not 

apply to acquisitions subject to certain 

trade agreements (see FAR subpart 

25.4). For these acquisitions, end 

products and construction materials 

from certain countries receive 

nondiscriminatory treatment when 

evaluated alongside domestic offers. 

Generally, the dollar value of the 

acquisition determines whether and 

which trade agreement applies to the 

acquisition. For example, the World 

Trade Organization—Government 

Procurement Agreement (WTO GPA) 

applies to acquisitions starting at 

$182,000 for supply contracts, and at 

$7,008,000 for construction contracts. 

Exceptions to the applicability of the 

trade agreements are described in FAR 

subpart 25.4. 

The percentages for the domestic 

content test and the price preference 

were increased in the FAR on January 

19, 2021, through FAR case 2019–016, 

Maximizing Use of American-Made 

Goods, Products, and Materials (86 FR 

6180). However, the concept of the 

domestic content test (formerly referred 

to as the component test) has been in 

the FAR since it was first created and 

published in 1983. 

Section 8 of E.O. 14005 requires the 

FAR Council to consider amending the 

FAR to— 

(1) Replace the component test used 

to identify domestic end products and 

domestic construction materials with a 

test under which domestic content is 

measured by the value that is added to 

the product through U.S.-based 

production or U.S. job-supporting 

economic activity; 

(2) Increase the threshold for the 

domestic content requirement; and 

(3) Increase the price preferences for 

domestic end products and domestic 

construction materials. 

As explained above, the purpose of 

the amendments is to promote the 

procurement by the Government of 

goods, products, and materials from 

sources that will help American 

businesses compete in strategic 

industries and help America’s workers 

thrive. Improved Buy American rules 

will help ensure that Federal 

procurement plays an important role as 

part of the Administration’s policy to 

build back the American economy so it 

can continue to lead the global 


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40982 Federal Register / Vol. 86, No. 144 / Friday, July 30, 2021 / Proposed Rules 

marketplace, supporting U.S.-based 

businesses—small and large, urban and 

rural, including those that have been 

historically disadvantaged. In pursuit of 

those goals, this proposed rule would 

provide for— 

• An increase to the domestic content 

threshold, a schedule for future 

increases, and a fallback threshold that 

would allow for products meeting a 

specific lower domestic content 

threshold to qualify as domestic 

products under certain circumstances; 

• A framework for application of an 

enhanced price preference for a 

domestic product that is considered a 

critical product or made up of critical 

components; and 

• A postaward domestic content 

reporting requirement for contractors. 

The proposed rule does not seek to 

replace the ‘‘component test’’ in FAR 

Part 25 at this time. Instead, the FAR 

Council seeks additional information 

regarding the strengths and 

shortcomings of the ‘‘component test,’’ 

as currently structured, and requests 

public comment on how domestic 

content might be better calculated to 

support America’s workers and 

businesses, strengthening our economy, 

workers, and communities across the 

country (see related questions below). 

II. Discussion and Analysis 

A. Increase to the Domestic Content 

Threshold 

This rule proposes to increase the 

domestic content threshold initially 

from 55 percent to 60 percent, to 

increase the threshold to 65 percent in 

two years, and to increase the threshold 

to 75 percent five years after the second 

increase. A supplier holding a contract 

with a period of performance that spans 

the schedule of threshold increases will 

be required to comply with each 

increased threshold for the items in the 

year of delivery. For example, a supplier 

awarded a contract in 2027 will have to 

comply with the 65 percent domestic 

content threshold initially, but in 2029 

will have to supply products with 75 

percent domestic content. The domestic 

content threshold is implemented in the 

FAR through the definitions of 

‘‘domestic construction material’’ and 

‘‘domestic end product.’’ As such, this 

rule proposes to make amendments 

throughout FAR part 25 and to FAR 

clauses 52.225–1, 52.225–3, 52.225–9, 

and 52.225–11 to reflect the increases to 

the domestic content threshold. 

B. Fallback Threshold 

This rule also proposes to allow, until 

one year after the increase of the 

domestic content threshold to 75 

percent, for the acceptance of the former 

domestic content threshold in instances 

where end products or construction 

materials that meet the new domestic 

content threshold are not available or 

are of unacceptable cost. For example, if 

a domestic end product that exceeds the 

60 percent domestic content threshold 

is determined to be of unreasonable cost 

after application of the price preference, 

then for evaluation purposes the 

Government will treat an end product 

that is manufactured in the United 

States and exceeds 55 percent domestic 

content, but not 60 percent domestic 

content, as a domestic end product. In 

order to implement this fallback 

threshold, the rule proposes to require 

offerors to indicate which of their 

foreign end products exceed 55 percent 

domestic content. The fallback 

threshold only applies to construction 

material that does not consist wholly or 

predominantly of iron or steel or a 

combination of both and to end 

products that do not consist wholly or 

predominantly of iron or steel or a 

combination of both. Amendments are 

proposed throughout FAR part 25, to 

FAR provisions 52.212–3, 52.225–2, and 

52.225–4, and to FAR clauses 52.225–9 

and 52.225–11 to reflect the fallback 

threshold. 

C. Enhanced Price Preference for 

Critical Products and Critical 

Components 

The rule provides for a framework 

through which higher price preferences 

will be applied for end products and 

construction material deemed to be 

critical or made up of critical 

components. The definitions for critical 

component and/or critical item are 

added to FAR 25.003 and to the FAR 

provisions and clauses at 52.212–3, 

52.225–1, 52.225–2, 52.225–3, 52.225–9, 

and 52.225–11. The list of critical items 

and components is being added to 

newly-designated FAR 25.105; existing 

FAR 25.105 is proposed to be 

redesignated as 25.106. Procedures for 

applying the price preferences 

associated with critical items and 

components are added to the 

redesignated FAR 25.106 for supply 

contracts and 25.204 for construction 

contracts. The rule requires offerors to 

identify in their offer domestic end 

products that contain a critical 

component, so that contracting officers 

can apply the higher price preferences 

when appropriate. Without such 

information, contracting officers would 

not know when a proposed domestic 

end product contains a critical 

component. An explicit requirement to 

provide this information is added to 

FAR provisions 52.212–3, 52.225–2, and 

52.225–4. 

The process for identifying critical 

items and critical components to receive 

the price preference would use the 

quadrennial critical supply chain 

review instituted in E.O. 14017, 

America’s Supply Chains (86 FR 11849), 

as well as the National COVID Strategy. 

OMB will lead a subsequent assessment 

to further distill the list of products 

designated critical to those products for 

which procurement is likely to make a 

meaningful difference toward 

strengthening U.S. supply chains. The 

products that will receive a price 

preference will be determined in a 

separate rulemaking, to allow time for 

the supply chain review and trade pact 

waiver review to be completed first. Not 

all critical products identified through 

the supply chain review will necessarily 

qualify for the preference. The process 

for determining critical products will 

also determine the enhanced price 

preference for each critical item or end 

product with critical components. 

Once the list is established in the 

FAR, the list will be published in the 

Federal Register for public comment no 

less frequently than once every four 

years to reflect changes to the list. 

D. Postaward Reporting Requirement 

In order to gain insight into the actual 

domestic content of products sold under 

contract and thereby support the 

Administration’s broader supply chain 

security initiatives, this rule requires 

contractors to provide the specific 

domestic content of critical items, 

domestic end products containing a 

critical component, and domestic 

construction material containing a 

critical component, that were awarded 

under a contract. Contractors are not 

required to report the domestic content 

of COTS items. Two new FAR clauses 

were created to implement the reporting 

requirement. One clause is for supplies 

and one is for construction materials; 

prescriptions were added to FAR 

25.1101 and 25.1102 to capture this 

requirement. Since specific critical 

items or critical components will not be 

added to the FAR until the separate 

rulemaking referenced in section II.C of 

this preamble, these clauses will not be 

operational until finalization of that 

separate rule. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and for Commercial 

Items, Including Commercially 

Available Off-the-Shelf (COTS) Items 

This rule amends the provisions and 

clauses at FAR— 


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• 52.212–3, Offeror Representations 

and Certifications—Commercial Items; 

• 52.225–1, Buy American— 

Supplies; 

• 52.225–2, Buy American Certificate; 

• 52.225–3, Buy American—Free 

Trade Agreements—Israeli Trade Act; 

• 52.225–4, Buy American—Free 

Trade Agreements—Israeli Trade Act 

Certificate; 

• 52.225–9, Buy American— 

Construction Materials; and 

• 52.225–11, Buy American— 

Construction Materials Under Trade 

Agreements. 

Those provisions and clauses 

continue to apply, or not apply, to 

acquisitions at or below the SAT and to 

acquisitions for commercial and COTS 

items as they did prior to this rule. 

This rule proposes to add two clauses 

at FAR 52.225–XX, Domestic Content 

Reporting Requirement—Supplies, and 

FAR 52.225–YY, Domestic Content 

Reporting Requirement—Construction 

Materials. The clauses are prescribed at 

FAR 25.1101 for solicitations and 

contracts containing the clause at 

52.225–1 or 52.225–3 for supply 

contracts, and at FAR 25.1102 for 

solicitations and contracts containing 

the clause at 52.225–9 or 52.225–11 for 

construction contracts. The clauses are 

applicable to acquisitions at or below 

the SAT and to acquisitions for 

commercial items, excluding COTS 

items. 

The clause will apply to acquisitions 

at or below the SAT and to acquisitions 

for commercial items because 

exempting those acquisitions would 

severely limit the use of the provision. 

Considering the threshold at which 

certain trade agreements apply, the Buy 

American statute predominantly applies 

to acquisitions below the SAT. Also, 

according to procurement data, almost 

half of the acquisitions to which the Buy 

American statute currently applies use 

commercial acquisition procedures. 

With respect to COTS items, the 

Administrator for Federal Procurement 

Policy, using authorities provided at 41 

U.S.C. 1907 to reduce administrative 

burdens imposed by Governmentunique requirements, waived the 

component test of the Buy American 

statute for the acquisition of COTS items 

in 2009. For this reason, it is not 

expected at this time that the clause will 

apply to that class of acquisitions. 

However, as explained in OMB 

Memorandum M–21–26, Increasing 

Opportunities for Domestic Sourcing 

and Reducing the Need for Waivers 

from Made in America Laws, the Made 

in America Office, in collaboration with 

the Administrator, other members of the 

FAR Council, and interested parties, 

will review the findings and 

conclusions of the 2009 determination. 

The results of that review will help to 

inform if and the extent to which the 

component test should be restored. 

IV. Expected Impact of the Rule 

This rule proposes three sets of 

changes to the FAR’s implementation of 

the Buy American statute: 

• An increase to the domestic content 

threshold required to be met for a 

product to be defined as ‘‘domestic,’’ a 

schedule for future increases, and a 

fallback threshold that would allow for 

products meeting a specific lower 

domestic content threshold to qualify as 

a domestic product under certain 

circumstances; 

• A framework for application of an 

enhanced price preference for a 

domestic product that is considered a 

critical product or made up of critical 

components; and 

• A postaward domestic content 

reporting requirement for contractors. 

The impact of each set of changes is 

addressed individually below. 

Scheduled Increase to the Domestic 

Content Threshold and the Use of a 

Fallback Threshold 

The fundamental goal of the rule is to 

increase the share of American-made 

content in a domestic end product or 

construction material. The graduated 

increase is intended to drive to this goal 

in a proactive but measured fashion so 

that contractors have adequate time to 

make adjustments in their supply 

chains. When this rule is implemented, 

domestic industries supplying domestic 

end products are likely to benefit from 

a competitive advantage. 

Federal Procurement Data System 

(FPDS) data for fiscal year 2020 indicate 

there were 121,063 new contract awards 

for products and construction, valued 

over the micro-purchase threshold 

through the threshold at which the 

WTO GPA applies, to which the Buy 

American statute applied. It is estimated 

that 37,503 of these awards were for 

commercially available off-the-shelf 

(COTS) items and since the domestic 

content threshold test does not apply to 

COTS items (except those involving 

iron/steel), those awards were 

subtracted from the 121,063 total 

eligible awards. After removing 

potential COTS item acquisitions from 

the data, there are estimated to be 

83,560 contract awards to 14,163 unique 

contractors. 

It is unclear if the pool of qualified 

suppliers would be reduced, resulting in 

less competition (and a possible 

increase in prices that the Government 

will pay to procure these products). The 

fallback threshold is intended to: (1) 

Help prevent scheduled increases in the 

content threshold from taking work 

away from domestic suppliers who are 

actively adjusting their supply chains; 

and (2) avoid unintentionally raising the 

foreign content of Federal purchases 

through increased use of waivers while 

domestic suppliers adjust. The fallback 

threshold would be a temporary 

measure designed to limit foreign 

content while contractors transition to 

U.S.-based supply chains. 

In response to public comment, the 

FAR Council will consider larger or 

smaller increases in the content 

threshold as well as differently timed 

increases in the final rule. See questions 

for the public, below. These 

determinations will be based on 

considerations such as potential impact 

on competition, potential impact on 

supplier diversity, including 

participation of small disadvantaged 

businesses and businesses in other 

underserved communities, lost 

opportunities for American workers, 

and other considerations identified by 

public comment and other interested 

parties. 

At least three arguments point to the 

possibility that any increased burden 

with regard to the timed increase to the 

domestic content threshold, on 

contractors in particular, could be small, 

if not de minimis. 

First, DoD, GSA, and NASA do not 

anticipate significant cost from 

contractor familiarization with the rule 

given the history of rulemaking and 

E.O.s in this area. The basic mechanics 

of the Buy American statute (e.g., 

general definitions, certifications 

required of offerors to demonstrate end 

products are domestic) remain 

unchanged and continue to reflect 

processes that are decades old. Under 

the proposed rule, when deciding 

whether to pursue a procurement or 

what kind of product mix (i.e., domestic 

or foreign) and pricing to propose in 

response to a solicitation, offerors now 

will have to plan for future changes to 

the domestic content threshold during 

the period of performance of the 

contemplated contract. Those offerors 

that make a business decision not to 

modify their supply chains over time to 

comply with the scheduled increases to 

the domestic content threshold will still 

be able to propose an offer for Federal 

contracts but will generally no longer 

enjoy a price preference. 

Second, some, if not many, 

contractors may already be able to 

comply with the higher domestic 

content requirement needed to meet the 

definition of domestic end product 

under E.O. 14005 and the proposed rule. 


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Laws such as the SECURE Technology 

Act, Public Law 115–390, which 

requires a series of actions to strengthen 

the Federal infrastructure for managing 

supply chain risks, are placing 

significantly increased emphasis on the 

need for Federal agencies and Federal 

Government contractors to identify and 

reduce risk in their supply chains. One 

way to reduce supply chain risk is to 

increase domestic sourcing of content. A 

U.S. Bureau of Economic Analysis study 

using 2015 data, https://

www.commerce.gov/sites/default/files/ 

migrated/reports/2015-what-is-made-inamerica_0.pdf, found that on average, 

82 percent of the value of U.S. 

manufacturing output is comprised of 

domestic content. This seems to 

indicate that a domestic content 

threshold of 60 percent would not 

inflict additional burden on contractors. 

In addition, a preliminary analysis of 

available data in FPDS on the impact of 

an increase earlier this year in the 

domestic content threshold from 50 

percent to 55 percent did not appear to 

trigger an uptick in waivers, suggesting 

companies may already be incorporating 

content that can meet at least the 55 

percent level: 

Feb–April 2021 Feb–April 2020 Feb–April 2019 Feb–April 2018 

Total spend 

(millions of $) 

Total spend 

(millions of $) 

Total spend 

(millions of $) 

Total spend 

(millions of $) 

Total ................................................................................................. $2,861 $7,578 $7,570 $7,635 

Buy American Waived * ................................................................... $15 $78 $70 $63 

Percent Waived ............................................................................... 0.5% 1.0% 0.9% 0.8% 

* Waivers included here are Commercial Information Technology, Domestic Non-availability, Public Interest Determination, Resale, or Unreasonable Cost. They do not include waivers due to trade agreements or DoD qualifying country, which would not be impacted by a change in the 

content threshold. 

Third, it is anticipated that some 

contractors’ products and construction 

materials may not meet the definition of 

domestic end product and construction 

material unless the contractors take 

steps to adjust their supply chains to 

increase the domestic content. Those 

contractors that make a business 

decision not to modify their supply 

chains will still be able to bid on 

Federal contracts and could still enjoy 

a price preference if their end product 

meets the prior definition of domestic 

end product (i.e., exceeding 55 percent). 

In the event that the Government does 

not receive any offers of domestic end 

products or the domestic end products 

are of unreasonable cost, the 

Government will treat the end products 

that have at least 55 percent domestic 

content as a domestic end product for 

evaluation purposes. Offerors now have 

an information collection burden of 

identifying when a foreign end product 

meets the fallback threshold (see section 

VIII of this preamble), but that burden 

should be offset by the benefit of 

potentially still receiving a price 

preference for these end products that 

would have been considered domestic 

prior to the increases to the domestic 

content threshold proposed in this rule. 

Offerors have an option to increase 

the domestic content and continue to 

offer domestic products, in which case 

they may benefit from the price 

preference for domestic products, or 

they may continue to offer the same 

product, which will now be evaluated 

as foreign but may still benefit from a 

price preference. DoD, GSA, and NASA 

do not have any data on how many 

currently domestic products would fall 

into this categoryor have any knowledge 

as to which option an offeror of such 

products would select, since this is a 

business decision for each offeror to 

make. 

Enhanced Price Preference for Critical 

Items 

The goal of the enhanced price 

preference for critical items and 

components is to provide a steady 

source of demand for domestically 

produced critical products. As 

explained above, the rule only creates a 

framework. Separate rulemaking will be 

undertaken to add critical products and 

components to the FAR and to establish 

the associated preferences. Therefore, 

the impact associated with this concept 

will be captured in the subsequent 

rulemaking. 

There is an information collection 

burden associated with offerors 

identifying when a domestic end 

product or domestic construction 

material contains a critical component 

(see section VIII of this preamble), but 

that burden should be offset by the 

larger price preference received for 

these items. 

Postaward Reporting Requirement for 

Contractors 

Today, the acquisition community has 

limited direct information on the overall 

level of domestic content of the items it 

buys, other than whether or not the 

content meets the required threshold. 

The data on the amount of actual 

domestic content provided in the 

contractors’ reports is expected to 

provide the Made in America Office in 

the Office of Management and Budget 

valuable insight on the domestic content 

of the manufactured products that are 

integral to U.S. national and economic 

security. Separate rulemaking will be 

undertaken to add critical items and 

components to the FAR and to establish 

the associated preferences. Therefore, 

the impact associated with postaward 

reporting for these items will be 

captured in the subsequent rulemaking. 

This postaward reporting requirement 

for critical items and critical 

components is a step in building the 

Government’s capability in collecting 

data that will enable more informed 

decisions in this arena, e.g., how and 

when to increase domestic content 

thresholds, what enhanced price 

preference level for critical items is 

most efficient, etc. This phased 

approach will provide an opportunity 

for the Government to evaluate the 

impact of this information collection, 

with potential expansion in future 

years. 

There is an information collection 

burden associated with the reporting 

requirement. See section VIII of this 

preamble. The calculation provided in 

section VIII is a broad estimate since 

there is no specified list of critical items 

or components at this time. 

Request for Comments 

Based on the above, DoD, GSA, and 

NASA do not expect a significant cost 

impact on the public, but lack data to 

make a definitive determination and 

seek information from the public to 

assist with this analysis and to help 

further inform the regulatory drafters as 

they develop the final rule and carry out 

other responsibilities under the E.O. 

Feedback is requested on the following 

questions pertaining to this proposed 

rule: 


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(1) Increased Domestic Content 

Thresholds: Do products you make or 

sell to the Federal Government currently 

meet the proposed increased domestic 

content thresholds of 60 percent, 65 

percent, or 75 percent? 

(a) Would you be willing and able to 

adjust your supply chain to meet the 

proposed new thresholds given the 

scheduled phase-in? Why or why not? 

Please discuss any obstacles that might 

interfere with, or opportunities— 

including actions by the Federal 

Government—that might support, your 

ability to meet the proposed increases in 

domestic content thresholds. 

(b) If you are willing to make supply 

chain adjustments, please provide an 

overview of associated costs and 

benefits to making these changes. 

Explain to what extent any costs may be 

offset by increased Federal Government 

sales or price preferences. If relevant, 

provide an overview of expected 

increased economic activity through the 

increased use of domestic suppliers and 

domestic labor. 

(2) Fallback Threshold: Please address 

the utility of the proposed fallback 

threshold, including whether it would 

give your company time to adjust to a 

higher domestic content threshold; 

whether the fallback threshold should 

increase as the domestic content 

threshold increases; whether the 

existence of the fallback threshold 

would delay the ability to increase 

Made in America content in Federal 

procurement; the process by which the 

fallback threshold should be eliminated 

in order to maximize the use of Made 

in America content; and any challenges 

posed by the complexity of employing 

a fallback threshold. 

(3) Price Preferences: Please comment 

on the effectiveness of current price 

preference levels at promoting domestic 

economic activity and employment and 

strengthening domestic supply chains 

for critical items; address whether 

increased price preferences would be 

more, less, or equally as effective, and, 

if more effective, at what level. 

(4) Enhanced Price Preferences: 

Please comment on the anticipated 

effectiveness of providing enhanced 

price preferences to strengthen the 

domestic supply chains for items and 

components deemed ‘‘critical’’. In 

particular— 

(a) Which specific items or 

components or combination thereof, if 

any, should receive an enhanced price 

preference and why? 

(b) What process should the Office of 

Management and Budget use to 

determine which of the critical items 

identified through the critical supply 

chain review under E.O. 14017 and the 

National COVID Strategy are likely to 

make a meaningful difference toward 

strengthening domestic supply chains 

such that an enhanced preference is 

merited? In addition to national and 

economic security, should the process 

identify items and components that are 

critical to other factors such as national 

public health and sustainability? Should 

the process consider the impact on the 

creation of well-paying jobs in 

identifying critical items or 

components? 

(c) Is four years a reasonable interval 

for updating the critical components or 

item list? Why or why not? 

(d) How should enhanced price 

preferences be applied? For example, if 

a finished product includes multiple 

critical components, what is the most 

effective way to apply an enhanced 

price preference (e.g., a single time, 

once per component)? 

(e) Please address whether and how 

enhanced price preferences should be 

considered for commercial items that 

have been identified as critical and 

currently are subject to either a full 

statutory Buy American waiver (in the 

case of information technology) or a 

partial regulatory Buy American waiver 

(in the case of COTS items) and the 

reasons for your response. 

(f) If particular vendors can supply 

products that exceed the minimum 

domestic content threshold by 

significant margins, should the Federal 

Government consider whether and how 

to incentivize such practices to 

maximize the use of taxpayer dollars on 

domestic content? 

(5) Content Calculation: Section 8(i) 

of the E.O. directed the FAR Council to 

consider replacing the ‘‘component test’’ 

in FAR Part 25 with a test under which 

domestic content is measured by a 

‘‘value added’’ calculation. Please 

comment on (a) how such ‘‘value’’ could 

be calculated in order to promote U.S.- 

based production or U.S. job-supporting 

economic activity; (b) whether a ‘‘value 

added’’ calculation would be superior to 

the current approach and why or why 

not; and (c) whether approaches other 

than a ‘‘value added’’ calculation should 

be employed to achieve the goals of the 

E.O. (for example, should the definition 

of ‘‘cost of components’’ in FAR 25.003 

be changed). 

(6) Content Reporting: Will the 

proposed requirement to report on the 

actual level of domestic content 

included in designated critical products 

sold to the Federal Government provide 

greater compliance with Made in 

America Laws? Why or why not? 

(a) Will the requirement negatively 

impact small or disadvantaged 

businesses, such as those who are 

resellers or distributors? How can these 

impacts be mitigated? 

(b) What other procedures can the 

Federal Government employ to better 

monitor compliance with Made in 

America Laws? 

(7) Contracting with small and 

disadvantaged businesses: What 

specific steps should the Federal 

Government consider to maximize 

opportunities for small and 

disadvantaged businesses and avoid 

unintended barriers to entry as it works 

to strengthen the impact of Made in 

America Laws, diversify domestic 

supplier bases, and create new 

opportunities for U.S. firms and 

workers? 

V. Public Meeting 

The Made in America Office and the 

FAR Council are co-hosting a virtual 

public meeting to obtain the views of 

experts and interested parties in the 

private sector regarding implementation 

of section 8, as well as other sections, 

of E.O. 14005. The meeting will be 

recorded and a transcript of the meeting 

will be posted to regulations.gov, under 

the ‘‘FAR Case 2021–008’’ docket. For 

more details on the public meeting, 

such as the agenda, visit https://

www.acquisition.gov/publicmeeting_

FAR_proposedrule-2021-008_

BuyAmericanAct. 

Registration: Individuals wishing to 

participate in the virtual meeting must 

register at https://gsa.zoomgov.com/ 

webinar/register/WN_HXrvVS0hS1- 

pksKSNrEKIA. There is limited capacity 

of 3,000 attendees and registration will 

be on a first-come, first-served basis. 

Early registration is encouraged. 

Members of the press, in addition to 

registering for this event, must also 

RSVP to press@gsa.gov by August 16, 

2021. For any questions regarding 

registration, please email 

gsaombudsman@gsa.gov. 

Presentations: If you wish to make a 

presentation, instructions for submitting 

presentations will be posted at https:// 

www.acquisition.gov/publicmeeting_

FAR_proposedrule-2021-008_

BuyAmericanAct. Presentations will be 

posted to regulations.gov, under the 

‘‘FAR Case 2021–008’’ docket. 

Other means of submitting public 

comments: In lieu of, or in addition to, 

participating in the public meeting, 

interested parties may also submit 

written comments on the rule and 

responses to the questions contained in 

this preamble to regulations.gov via the 

Federal eRulemaking Portal in 

accordance with the instructions in the 

DATES and ADDRESSES sections of this 

document. 


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Questions for the public: In addition 

to the questions in Section IV above 

specific to FAR case 2021–008, public 

feedback is also requested on the 

following questions pertaining to other 

sections of E.O. 14005: 

(1) Commercial IT: Acquisitions of 

commercial IT are exempt by statute 

from the requirements of the Buy 

American statute. Section 10 of the 

Executive Order requires a review of the 

impact of this exception, which has 

been in effect for more than 15 years. To 

help inform this review, the FAR 

Council seeks input on the extent to 

which the original purpose of the 

exception, or other goals of the 

exception, remain relevant. Under what 

situations, if any, do current 

marketplace conditions support 

narrowing or lifting the statutory 

waiver? Please be specific in your 

description, which might identify 

market segments or specific items, 

anticipated benefits and drawbacks of 

the rollback, and steps the FAR Council 

or other Government stakeholders might 

take to mitigate potential unintended 

consequences. 

(2) Commercially Available Off-theShelf Items: In 2009, the Office of 

Federal Procurement Policy (OFPP), 

using authorities provided by Congress 

to reduce administrative burdens 

imposed by Government-unique 

requirements, waived the component 

test of the Buy American statute for 

acquisition of COTS items. In making 

the decision, OFPP concluded, in part, 

that manufacturers’ component 

purchasing decisions are based on 

factors such as cost, quality, availability, 

and maintaining the state of the art, not 

the country of origin, making it difficult 

for a manufacturer to guarantee the 

source of its components over the term 

of a contract. OFPP further concluded 

that continued application of the 

content requirement created a barrier to 

entry which may limit the Government’s 

ability to purchase products already in 

the commercial distribution systems. 

OFPP and the other members of the FAR 

Council seek to understand the extent to 

which the original purpose of the partial 

waiver remains relevant. 

i. How has the application of the 

COTS waiver since 2009 been consistent 

or inconsistent with its stated purpose? 

For example, has the use of COTS 

expanded (or narrowed) since 2009 in 

ways that may not have been originally 

contemplated? If applicable, provide 

specific examples of the application of 

the COTS waiver that demonstrate 

inconsistency with its original purpose. 

ii. Has the COTS waiver benefitted 

domestic firms and their employees? 

Why or why not? 

iii. Under what situations, if any, do 

current marketplace conditions support 

narrowing or lifting the partial waiver? 

Please be specific in your description, 

which might identify critical industries, 

specific market segments, or specific 

items; please discuss anticipated 

benefits and drawbacks of a rollback, 

including impacts on small and 

disadvantaged business enterprises, and 

steps the FAR Council or other Federal 

entities could take to mitigate potential 

unintended consequences. 

iv. Regardless of any other changes to 

the COTS partial waiver, should the 

Federal Government gather data on the 

domestic content of all COTS items, 

some COTS items or categories of COTS 

items to inform future policy making? If 

so, what items or categories should be 

addressed? How might this be 

accomplished consistent with the intent 

of the COTS partial waiver to reduce 

administrative burdens? 

v. Please provide any 

recommendations to maintain and 

increase domestic production of COTS 

items (both manufacturing of the end 

product and its components) in critical 

industries. 

(3) Services: How can the Federal 

Government promote the use of Made in 

America services? What standards or 

methodologies might be considered that 

could be easily adapted by commercial 

sellers? Are there critical services that 

should be accorded price preferences, 

and if so, why? 

(4) Trade agreements: Because of the 

World Trade Organization— 

Government Procurement Agreement 

(WTO GPA) and the Trade Agreements 

Act (TAA), domestic content rules do 

not currently apply to most non-DoD 

goods acquisitions over $182,000. Thus, 

the newly proposed domestic content 

threshold will not apply to many 

purchases that the Government makes. 

Under the TAA, a purchase is treated as 

U.S.-made if it is mined, produced, or 

manufactured in the United States or 

substantially transformed in the United 

States, even if it is made of 100 percent 

foreign content. As a result, a 

substantially transformed U.S.-made 

product may have far less domestic 

content when compared to a domestic 

end product acquired under the Buy 

American statute. While U.S. trade 

obligations are beyond the scope of this 

rulemaking, the Made in America Office 

and the FAR Council seek to understand 

more about the impact of the substantial 

transformation test and potential lost 

opportunities for American workers. 

i. To the best of your knowledge, what 

specific types of products are sold to the 

Federal Government that count as being 

made in America under the Trade 

Agreements Act (‘‘U.S.-made end 

product’’), but contain less than the 

current 55 percent U.S. content 

threshold required under the Buy 

American statute? Do the differing 

standards provide a benefit to domestic 

firms? 

ii. Is ‘‘substantial transformation’’ a 

useful tool to promote good domestic 

jobs and domestic manufacturing? Why 

or why not? 

iii. What steps could the Federal 

Government take, consistent with its 

trade obligations, to acquire useful 

information about the content of goods 

procured pursuant to trade obligations, 

including in critical supply chains? 

Useful information might include the 

percentage of domestic content and 

country of origin for certain components 

identified by the agency. 

iv. Please provide any 

recommendations to maintain and 

increase domestic production in critical 

industries in acquisitions subject to 

trade obligations. 

(5) Additional ideas: Please provide 

any additional recommendations for: 

i. Strengthening content standards 

under the Buy American statute, 

including recommendations for how 

content is calculated and whether and 

why certain products or categories of 

products should have more stringent 

content standards than others. 

ii. The use of waivers and exceptions 

to the Buy American statute, including 

proposals to narrow or expand the scope 

of existing waivers; ensure appropriate 

interpretation of existing waivers; and 

policies or practices to ensure that 

unnecessary waivers are not granted. 

iii. Improving the Federal 

Government’s ability to enforce the 

content standards in the Buy American 

statute, including by verifying domestic 

content levels. 

VI. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is a significant 

regulatory action and, therefore, was 

subject to review under Section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. 


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VII. Congressional Review Act 

As required by the Congressional 

Review Act (5 U.S.C. 801–808) before an 

interim or final rule takes effect, DoD, 

GSA, and NASA will send the rule and 

the ‘‘Submission of Federal Rules Under 

the Congressional Review Act’’ form to 

each House of Congress and to the 

Comptroller General of the United 

States. A major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This rule is not 

anticipated to be a major rule under 5 

U.S.C. 804. 

VIII. Regulatory Flexibility Act 

DoD, GSA, and NASA do not expect 

this rule to have a significant economic 

impact on a substantial number of small 

entities within the meaning of the 

Regulatory Flexibility Act, 5 U.S.C. 601– 

612. This rule changes the existing 

minimum domestic content percentages 

and introduces a discretionary proposal 

evaluation strategy. This rule proposes 

to amend the required percentage of 

domestic content and the existing 

percentages for the price evaluation 

preferences in an effort to decrease the 

amount of foreign-sourced content in a 

U.S. manufactured product to promote 

economic and national security, help 

stimulate economic growth, and create 

jobs. An Initial Regulatory Flexibility 

Analysis (IRFA) has been performed and 

is summarized as follows: 

This rule proposes to amend the FAR to 

implement an Executive Order regarding 

ensuring the future is made in all of America 

by all of America’s workers. 

The objective of this rule is to strengthen 

domestic preferences under the Buy 

American statute, as required by E.O. 14005, 

Ensuring the Future is Made in All of 

America by All of America’s Workers, by 

providing— 

• An increase to the domestic content 

threshold required to be met for a product to 

be defined as ‘‘domestic,’’ a schedule for 

future increases, and a fallback threshold 

which would allow for products meeting a 

specific lower domestic content threshold to 

qualify as a domestic product under certain 

circumstances; 

• A framework for application of an 

enhanced price preference for a domestic 

product that is considered a critical product 

or made up of critical components; and 

• A postaward domestic content reporting 

requirement for contractors. 

Different parts of the rule are expected to 

apply to a different number and universe of 

small entities. The impacted small entities, 

by portion of the rule, are described below. 

But in general, the rule will apply to 

contracts subject to the Buy American 

statute. The statute does not apply to 

services, or overseas, nor does it apply to 

acquisitions to which certain trade 

agreements apply (e.g., World Trade 

Organization Government Procurement 

Agreement (WTO–GPA)). The maximum 

possible number of small entities to which 

the rule will apply are the 31,103 active 

small business registrants in the System for 

Award Management (SAM) who do not 

provide services. 

—Timed increase to the domestic content 

threshold and allowance of a fallback 

threshold. Federal Procurement Data 

System (FPDS) data for fiscal year 2020 

indicates there were 86,490 new contract 

awards to small business for products and 

construction, valued over the micropurchase threshold through the threshold 

at which the WTO–GPA applies, to which 

the Buy American statute applied. It is 

estimated that 24,459 of these awards were 

for commercially available off-the-shelf 

(COTS) items. Because the domestic 

content threshold test does not apply to 

COTS items (except those involving iron/ 

steel), those awards were subtracted from 

the 86,490 total eligible awards. After 

removing potential COTS item acquisitions 

from the data, there are estimated to be 

62,031 contract awards to 11,704 unique 

small businesses. 

—Enhanced price preference for a critical 

product or component. This rule only 

creates a framework. Separate rulemaking 

will be done to add critical products and 

components to the FAR and to establish 

the associated preferences. However, the 

Government assumes that 10 percent of the 

contract awards subject to the Buy 

American statute will be for critical 

products or components. Therefore, the 

Government estimates that 8,649 (10 

percent of 86,490) of awards to small 

businesses may be impacted. This 

translates to 1,632 unique small 

businesses. 

—Postaward reporting requirement. The 

number of impacted small businesses for 

this part of the rule is similar to the 

number of those impacted by the enhanced 

price preference for critical products or 

components: The postaward reporting 

requirement applies to contracts awarded 

for critical products that are subject to the 

Buy American statute. However, unlike the 

enhanced price preference, the postaward 

reporting requirement will not apply to 

COTS item acquisitions, which results in a 

lower estimate of 1,170 impacted small 

businesses. 

The proposed rule will strengthen 

domestic preferences under the Buy 

American statute and provide small 

businesses the opportunity and incentive to 

deliver U.S. manufactured products from 

domestic suppliers. It is expected that this 

rule will benefit U.S. manufacturers. 

This proposed rule does not include any 

new recordkeeping or other compliance 

requirements for small businesses. However, 

the proposed rule does contain a few 

additional reporting requirements for certain 

offerors, including small businesses. 

Small businesses who submit an offer for 

a solicitation subject to the Buy American 

statute already have to list the foreign end 

products included in their offer. This 

proposed rule will require that the offeror 

also identify which of these foreign end 

products meet or exceed the fallback 

domestic content threshold. This rule will 

also require proposals to identify which 

offered domestic end products contain a 

critical component. Without that 

information, contracting officers will not be 

able to apply the ‘‘enhanced price 

preference’’ when applicable. These 

reporting requirements are not specific to 

small businesses, so data does not exist to 

estimate the number of small business 

subject to these requirements. However, the 

data suggests that there will be 

approximately 8,800 impacted respondents 

total, small and other than small. 

Small businesses awarded a contract 

containing the new clause requiring 

postaward reporting will need to provide to 

the Made in America Office domestic content 

information for end products that are critical 

products, domestic end products containing 

a critical component, or domestic 

construction material containing a critical 

component, if those items are awarded under 

the contract. Based on fiscal year 2020 data 

from FPDS, it is estimated that there will be 

6,203 contracts awarded to 1,170 unique 

small businesses that would be subject to this 

reporting requirement. 

This rule does not duplicate, overlap, or 

conflict with any other Federal rules. 

DoD, GSA, and NASA were unable to 

identify any significant alternatives. 

The Regulatory Secretariat Division 

has submitted a copy of the IRFA to the 

Chief Counsel for Advocacy of the Small 

Business Administration. A copy of the 

IRFA may be obtained from the 

Regulatory Secretariat Division. DoD, 

GSA, and NASA invite comments from 

small business concerns and other 

interested parties on the expected 

impact of this rule on small entities. 

DoD, GSA, and NASA will also 

consider comments from small entities 

concerning the existing regulations in 

subparts affected by the rule in 

accordance with 5 U.S.C. 610. Interested 

parties must submit such comments 

separately and should cite 5 U.S.C. 610 

(FAR Case 2021–008), in 

correspondence. 

IX. Paperwork Reduction Act 

The Paperwork Reduction Act (44 

U.S.C 3501–3521) applies because the 

proposed rule contains information 

collection requirements. Some of those 

information collection requirements are 

additional to the paperwork burden 

previously approved under OMB 

Control Number 9000–0024, Buy 

American, Trade Agreements, and DutyFree Entry. The proposed rule also 

contains a new information collection 

requirement. Accordingly, the 

Regulatory Secretariat Division has 

submitted a request for approval of a 

revised information collection 

requirement concerning information 

collection 9000–0024 to the Office of 

Management and Budget as well as a 

request for approval of a new 


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40988 Federal Register / Vol. 86, No. 144 / Friday, July 30, 2021 / Proposed Rules 

information collection requirement 

concerning ‘‘Domestic Content 

Reporting Requirement’’ to the Office of 

Management and Budget. 

With regard to existing information 

collection 9000–0024: 

A. Public reporting burden for this 

collection of information is estimated to 

average 0.63 hour per response, 

including the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

The annual reporting burden 

estimated as follows: 

Respondents: 16,478. 

Total Annual Responses: 69,165. 

Total Burden Hours: 43,469. 

B. Request for Comments Regarding 

Paperwork Burden. Submit comments 

on this collection of information no later 

than September 28, 2021 through 

https://www/regulations.gov and follow 

the instructions on the site. All items 

submitted must cite OMB Control No. 

9000–0024, Buy American, Trade 

Agreements, and Duty-Free Entry. 

Comments received generally will be 

posted without change to https://

www.regulations.gov, including any 

personal and/or business confidential 

information provided. To confirm 

receipt of your comment(s), please 

check https://www.regulations.gov, 

approximately two to three days after 

submission to verify posting. If there are 

difficulties submitting comments, 

contact the GSA Regulatory Secretariat 

Division at 202–501–4755 or 

GSARegSec@gsa.gov. 

With regard to the new information 

collection for clauses 52.225–XX and 

52.225–YY: 

A. Public reporting burden for this 

collection of information is estimated to 

average 3 hours per response, including 

the time for reviewing instructions, 

searching existing data sources, 

gathering and maintaining the data 

needed, and completing and reviewing 

the collection of information. 

The annual reporting burden 

estimated as follows: 

Respondents: 1,393. 

Total Annual Responses: 8,356. 

Total Burden Hours: 25,068. 

B. Request for Comments Regarding 

Paperwork Burden. 

Submit comments on this collection 

of information no later than September 

28, 2021 through https://www/ 

regulations.gov and follow the 

instructions on the site. All items 

submitted must cite OMB Control No. 

9000–XXXX, Domestic Content 

Reporting Requirement. Comments 

received generally will be posted 

without change to https://

www.regulations.gov, including any 

personal and/or business confidential 

information provided. To confirm 

receipt of your comment(s), please 

check https://www.regulations.gov, 

approximately two to three days after 

submission to verify posting. If there are 

difficulties submitting comments, 

contact the GSA Regulatory Secretariat 

Division at 202–501–4755 or 

GSARegSec@gsa.gov. 

C. For both sets of information 

collections, public comments are 

particularly invited on: 

• The necessity of this collection of 

information for the proper performance 

of the functions of Federal Government 

acquisitions, including whether the 

information will have practical utility; 

• The accuracy of the estimate of the 

burden of this collection of information; 

• Ways to enhance the quality, utility, 

and clarity of the information to be 

collected; and 

• Ways to minimize the burden of the 

collection of information on 

respondents, including the use of 

automated collection techniques or 

other forms of information technology. 

Requesters may obtain a copy of the 

supporting statement from the General 

Services Administration, Regulatory 

Secretariat Division by calling 202–501– 

4755 or emailing GSARegSec@gsa.gov. 

Please cite OMB Control Number 9000– 

XXXX, Domestic Content Reporting 

Requirement or OMB Control Number 

9000–0024, Buy American, Trade 

Agreements, and Duty-Free Entry, in all 

correspondence. 

List of Subjects in 48 CFR Parts 1, 25, 

and 52 

Government procurement. 

William F. Clark, 

Director, Office of Government-wide 

Acquisition Policy, Office of Acquisition 

Policy, Office of Government-wide Policy. 

Therefore, DoD, GSA, and NASA 

propose amending 48 CFR parts 1, 25, 

and 52 as set forth below: 

■ 1. The authority citation for 48 CFR 

parts 1, 25, and 52 continues to read as 

follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 51 U.S.C. 20113. 

PART 1— FEDERAL ACQUISITION 

REGULATION SYSTEM 

■ 2. In section 1.106 amend in the table 

following the introductory text, by 

adding in numerical order, entries for 

‘‘52.225–XX’’ and ‘‘52.225–YY’’ to read 

as follows. 

1.106 OMB approval under the Paperwork 

Reduction Act. 

* * * * * 

FAR segment OMB 

Control No. 

* * * * * 

52.225–XX ............................ 9000–XXXX 

52.225–YY ............................ 9000–XXXX 

* * * * * 

* * * * * 

PART 25—FOREIGN ACQUISITION 

■ 3. Amend section 25.003 by— 

■ a. Adding, in alphabetical order, the 

definitions ‘‘Critical component’’ and 

‘‘Critical item’’; 

■ b. In the definition ‘‘Domestic 

construction material’’ revising the first 

sentence of paragraph (1)(i)(B)(1); and 

■ c. In the definition ‘‘Domestic end 

product’’ revising the first sentence of 

paragraph (1)(ii)(A). 

The additions and revisions reads as 

follows: 

25.003 Definitions. 

* * * * * 

Critical component means a 

component that is mined, produced, or 

manufactured in the United States and 

deemed critical to the U.S. supply 

chain. The list of critical components is 

at 25.105. 

Critical item means a domestic 

construction material or domestic end 

product that is deemed critical to the 

U.S. supply chain. The list of critical 

items is at 25.105. 

* * * * * 

Domestic construction material 

means— 

(1) * * * 

(i) * * * 

(B) * * * 

(1) The cost of the components mined, 

produced, or manufactured in the 

United States exceeds 60 percent of the 

cost of all its components, except that 

the percentage will be 65 percent for 

items delivered in calendar years 2024 

through 2028, and 75 percent for items 

delivered starting in calendar year 2029. 

* * * 

* * * * * 

Domestic end product means— 

(1) * * * 

(ii) * * * 

(A) The cost of its components mined, 

produced, or manufactured in the 

United States exceeds 60 percent of the 

cost of all its components, except that 

the percentage will be 65 percent for 

items delivered in calendar years 2024 

through 2028 and 75 percent for items 

delivered starting in calendar year 2029. 

* * * 

* * * * * 


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■ 4. Amend section 25.100 by— 

■ a. Removing the word ‘‘and’’ at the 

end of paragraph (a)(3); 

■ b. Redesignating paragraph (a)(4) as 

(a)(5); and 

■ c. Adding a new paragraph (a)(4). 

The addition reads as follows: 

25.100 Scope of subpart. 

(a) * * * 

(4) Executive Order 14005, January 

25, 2021; and 

* * * * * 

■ 5. Amend section 25.101 by— 

■ a. Removing from paragraph (a) the 

phrase ‘‘the Buy American statute and 

E.O. 13881 use’’ and adding in its place 

the phrase ‘‘the Buy American statute, 

E.O. 13881, and E.O. 14005 use’’; and 

■ b. Revising the first sentence of 

paragraph (a)(2)(i). 

The revision reads as follows: 

25.101 General. 

(a) * * * 

(2)(i) Except for an end product that 

consists wholly or predominantly of 

iron or steel or a combination of both, 

the cost of domestic components shall 

exceed 60 percent of the cost of all the 

components, except that the percentage 

will be 65 percent for items delivered in 

calendar years 2024 through 2028 and 

75 percent for items delivered starting 

in calendar year 2029. * * * 

* * * * * 

25.103 [Amended] 

■ 6. Amend section 25.103 by removing 

from paragraph (c) ‘‘25.105’’ and 

‘‘Subpart 25.5’’ and adding ‘‘25.106’’ 

and ‘‘subpart 25.5’’ in their places, 

respectively. 

25.105 [Redesignated] 

■ 7. Redesignate section 25.105 as 

section 25.106. 

■ 8. Add a new section 25.105 to read 

as follows: 

25.105 Critical components and critical 

items. 

(a) The following is a list of articles 

that have been determined to be a 

critical component or critical item and 

their respective preference factor(s): 

(1) [Reserved] 

(2) [Reserved] 

(b) The list of articles and preference 

factors in paragraph (a) of this section 

will be published in the Federal 

Register for public comment no less 

frequently than once every 4 years. 

Unsolicited recommendations for 

deletions from this list may be 

submitted at any time and should 

provide sufficient data and rationale to 

permit evaluation (see 1.502). 

(c) For determining reasonableness of 

cost for domestic end products that 

contain critical components or are 

critical items, see 25.106(c). 

■ 9. Amend newly redesignated section 

25.106 by— 

■ a. In paragraph (a)(1) removing the 

phrase ‘‘paragraph (b) of this section’’ 

and adding the phrase ‘‘paragraphs (b) 

and (c) of this section’’ in its place; 

■ b. In paragraph (a)(2) remove the word 

‘‘Subpart’’ and adding the word 

‘‘subpart’’ in its place; 

■ c. Revise paragraph (b); and 

■ d. Revising paragraph (c). 

The added and revised text reads as 

follows: 

25.106 Determining reasonableness of 

cost. 

* * * * * 

(b) For end products that are not 

critical items and do not contain critical 

components. (1)(i) If there is a domestic 

offer that is not the low offer, and the 

restrictions of the Buy American statute 

apply to the low offer, the contracting 

officer must determine the 

reasonableness of the cost of the 

domestic offer by adding to the price of 

the low offer, inclusive of duty— 

(A) 20 percent, if the lowest domestic 

offer is from a large business concern; or 

(B) 30 percent, if the lowest domestic 

offer is from a small business concern. 

The contracting officer must use this 

factor, or another factor established in 

agency regulations, in small business 

set-asides if the low offer is from a small 

business concern offering the product of 

a small business concern that is not a 

domestic end product (see subpart 19.5). 

(ii) The price of the domestic offer is 

reasonable if it does not exceed the 

evaluated price of the low offer after 

addition of the appropriate evaluation 

factor in accordance with paragraph (a) 

or (b)(1)(i) of this section. See evaluation 

procedures at subpart 25.5. 

(2)(i) For end products that do not 

consist wholly or predominantly of iron 

or steel or a combination of both, if the 

procedures in paragraph (b)(1)(i) of this 

section result in an unreasonable cost 

determination for the domestic offer or 

there is no domestic offer received, and 

the low offer is for a foreign end product 

that does not exceed 55 percent 

domestic content, the contracting officer 

shall— 

(A) Treat the lowest offer of a foreign 

end product that is manufactured in the 

United States and exceeds 55 percent 

domestic content as a domestic offer; 

and 

(B) Determine the reasonableness of 

the cost of this offer by applying the 

evaluation factors listed in paragraph 

(b)(1)(i) to the low offer. 

(ii) The price of the lowest offer of a 

foreign end product that exceeds 55 

percent domestic content is reasonable 

if it does not exceed the evaluated price 

of the low offer after addition of the 

appropriate evaluation factor in 

accordance with paragraph (a) or 

(b)(1)(i) of this section. See evaluation 

procedures at subpart 25.5. 

(iii) The procedures in this paragraph 

(b)(2) will no longer apply as of January 

1, 2030. 

(c) For end products that are critical 

items or contain critical components. 

(1)(i) If there is a domestic offer that is 

not the low offer, and the restrictions of 

the Buy American statute apply to the 

low offer, the contracting officer shall 

determine the reasonableness of the cost 

of the domestic offer by adding to the 

price of the low offer, inclusive of 

duty— 

(A) 20 percent, plus the additional 

preference factor identified for the 

critical item or end product containing 

critical components listed at section 

25.105, if the lowest domestic offer is 

from a large business concern; or 

(B) 30 percent, plus the additional 

preference factor identified for the 

critical item or end product containing 

critical components listed at section 

25.105, if the lowest domestic offer is 

from a small business concern. The 

contracting officer shall use this factor, 

or another factor established in agency 

regulations, in small business set-asides 

if the low offer is from a small business 

concern offering the product of a small 

business concern that is not a domestic 

end product (see subpart 19.5). 

(ii) The price of the domestic offer is 

reasonable if it does not exceed the 

evaluated price of the low offer after 

addition of the appropriate evaluation 

factor in accordance with paragraph (a) 

or (b) of this section. See evaluation 

procedures at subpart 25.5. 

(2)(i) For end products that do not 

consist wholly or predominantly of iron 

or steel or a combination of both, if the 

procedures in paragraph (c)(1)(ii) of this 

section result in an unreasonable cost 

determination for the domestic offer or 

there is no domestic offer received, and 

the low offer is for a foreign end product 

that does not exceed 55 percent 

domestic content, the contracting officer 

shall— 

(A) Treat the lowest offer of a foreign 

end product that is manufactured in the 

United States and exceeds 55 percent 

domestic content as a domestic offer; 

and 

(B) Determine the reasonableness of 

the cost of this offer by applying the 

evaluation factors listed in paragraph 

(c)(1) to the low offer. 

(ii) The price of the lowest offer of a 

foreign end product that exceeds 55 

percent domestic content is reasonable 


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if it does not exceed the evaluated price 

of the low offer after addition of the 

appropriate evaluation factor in 

accordance with paragraph (a) or (b) of 

this section. See evaluation procedures 

at subpart 25.5. 

(iii) The procedures in this paragraph 

(c)(2) will no longer apply as of January 

1, 2030. 

■ 10. Amend section 25.200 by— 

■ a. In paragraph (a)(3) removing the 

word ‘‘and’’; 

■ b. Redesignating paragraph (a)(4) as 

paragraph (a)(5); 

■ c. Adding a new paragraph (a)(4); and 

■ d. In paragraph (c) removing the word 

‘‘Subpart’’ and adding the word 

‘‘subpart’’ in its place. 

The addition reads as follows: 

25.200 Scope of subpart. 

(a) * * * 

(4) Executive Order 14005, January 

25, 2021; and 

* * * * * 

■ 11. Amend section 25.201 by— 

■ a. In paragraph (b) removing the 

phrase ‘‘statute and E.O. 13881 use’’ and 

adding the phrase ‘‘statute, E.O. 13881, 

and E.O. 14005 use’’ in its place; and 

■ b. Revising the first sentence of 

paragraph (b)(2)(i). 

The revision reads as follows. 

25.201 Policy. 

* * * * * 

(b) * * * 

(2)(i) Except for construction material 

that consists wholly or predominantly 

of iron or steel or a combination of both, 

the cost of domestic components must 

exceed 60 percent of the cost of all the 

components, except that the percentage 

will be 65 percent for items delivered in 

calendar years 2024 through 2028 and 

75 percent for items delivered starting 

in calendar year 2029. * * * 

* * * * * 

■ 12. Amend section 25.204 by revising 

paragraph (b) to read as follows: 

25.204 Evaluating offers of foreign 

construction material. 

* * * * * 

(b)(1) For construction materials that 

are not critical items and do not contain 

critical components. (i) Unless the head 

of the agency specifies a higher 

percentage, the contracting officer shall 

add to the offered price 20 percent of 

the cost of any foreign construction 

material proposed for exception from 

the requirements of the Buy American 

statute based on the unreasonable cost 

of domestic construction materials. In 

the case of a tie, the contracting officer 

shall give preference to an offer that 

does not include foreign construction 

material excepted at the request of the 

offeror on the basis of unreasonable 

cost. 

(ii) For construction material that 

does not consist wholly or 

predominantly of iron or steel or a 

combination of both, if the procedures 

in paragraph (b)(1)(i) of this section 

result in an unreasonable cost 

determination for the domestic 

construction material offer or there is no 

domestic construction material offer 

received, and the low offer is for foreign 

construction material that does not 

exceed 55 percent domestic content, the 

contracting officer shall— 

(A) Treat the lowest offer of foreign 

construction material that is 

manufactured in the United States and 

exceeds 55 percent domestic content as 

a domestic offer; and 

(B) Determine the reasonableness of 

the cost of this offer by applying the 

evaluation factor listed in paragraph 

(b)(1)(i) to the low offer. 

(iii) The procedures in paragraph 

(b)(1)(ii) will no longer apply as of 

January 1, 2030. 

(2) For construction material that are 

critical items or contain critical 

components. (i) The contracting officer 

shall add to the offered price 20 percent, 

plus the additional preference factor 

identified for the critical item or 

construction material containing critical 

components listed at section 25.105, of 

the cost of any foreign construction 

material proposed for exception from 

the requirements of the Buy American 

statute based on the unreasonable cost 

of domestic construction materials. In 

the case of a tie, the contracting officer 

shall give preference to an offer that 

does not include foreign construction 

material excepted at the request of the 

offeror on the basis of unreasonable 

cost. See 25.105 for list of critical 

components and critical items. 

(ii) For construction material that 

does not consist wholly or 

predominantly of iron or steel or a 

combination of both, if the procedures 

in paragraph (b)(2)(i) of this section 

result in an unreasonable cost 

determination for the domestic 

construction material offer or there is no 

domestic construction material offer 

received, and the low offer is for foreign 

construction material that does not 

exceed 55 percent domestic content, the 

contracting officer shall— 

(A) Treat the lowest offer of foreign 

construction material that is 

manufactured in the United States and 

exceeds 55 percent domestic content as 

a domestic offer; and 

(B) Determine the reasonableness of 

the cost of this offer by applying the 

evaluation factors listed in paragraph 

(b)(2) to the low offer. 

(iii) The procedures in paragraph 

(c)(1)(ii) will no longer apply as of 

January 1, 2030. 

* * * * * 

25.501 [Amended] 

■ 13. Amend section 25.501 by— 

■ a. In paragraph (c) removing the word 

‘‘Subpart’’ and adding the word 

‘‘subpart’’ in its place; and 

■ b. In paragraph (d) removing the word 

‘‘Must’’ and adding the phrase ‘‘When 

trade agreements are involved, shall’’ in 

its place. 

■ 14. Amend section 25.502 by revising 

paragraphs (c)(2), (3), and (4) to reads as 

follows: 

25.502 Application. 

* * * * * 

(c) * * * 

(2) If the low offer is a noneligible 

offer and there were no domestic offers 

(see 25.103(b)(3)), award on the low 

offer. The procedures at 25.106(b)(2) 

and 25.106(c)(2) do not apply. 

(3) If the low offer is a noneligible 

offer and there is an eligible offer that 

is lower than the lowest domestic offer, 

award on the low offer. The procedures 

at 25.106(b)(2) and 25.106(c)(2) do not 

apply. 

(4) Otherwise, apply the appropriate 

evaluation factor provided in 25.106 to 

the low offer. The procedures at 

25.106(b)(2) and 25.106(c)(2) do not 

apply. 

* * * * * 

■ 15. Amend section 25.503 by— 

■ a. In paragraph (a)(1) removing the 

word ‘‘Subpart’ and adding the word 

‘‘subpart’’ in its place; and 

■ b. Adding paragraph (d) to read as 

follows: 

25.503 Group offers. 

* * * * * 

(d) If no trade agreement applies to a 

solicitation and the solicitation specifies 

that award will be made only on a group 

of line items or all line items contained 

in the solicitation, determine the 

category of end products on the basis of 

each line item, but determine whether 

to apply an evaluation factor on the 

basis of the group of items (see 25.504– 

4(c), Example 3). 

(1) If the proposed price of domestic 

end products exceeds 50 percent of the 

total proposed price of the group, 

evaluate the entire group as a domestic 

offer. Evaluate all other groups as 

foreign offers. 

(2) Apply the evaluation factor to the 

entire group in accordance with 25.502, 

except where 25.502(c)(4) applies and 

the evaluated price of the low offer 

remains less than the lowest domestic 

offer. Where the evaluated price of the 


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low offer remains less than the lowest 

domestic offer, treat as a domestic offer 

any group where the proposed price of 

end products with a domestic content of 

at least 55 percent exceeds 50 percent of 

the total proposed price of the group. 

(3) Apply the evaluation factor to the 

entire group in accordance with 

25.502(c)(4). 

■ 16. Amend section 25.504–1 by— 

■ a. In paragraph (a)(1), in the table 

revising the entry for ‘‘Offer C’’; 

■ b. Revising paragraph (a)(2); and 

■ c. Adding paragraph (c). 

The revised and added text reads as 

follows: 

25.504–1 Buy American statute. 

(a)(1) * * * 

*******

Offer C ..................................................... $10,100 U.S.-made end product (not domestic), small business. 

(2) Analysis: This acquisition is for 

end products for use in the United 

States and is set aside for small business 

concerns. The Buy American statute 

applies. Since the acquisition value is 

less than $25,000 and the acquisition is 

set aside, none of the trade agreements 

apply. Perform the steps in 25.502(a). 

Offer C is evaluated as a foreign end 

product, because it is the product of a 

small business but is not a domestic end 

product because the offer is of 50% 

domestic content (see 25.502(c)(4)). 

Since Offer B is a domestic offer, apply 

the 30 percent factor to Offer C (see 

25.106(b)(2)). The resulting evaluated 

price of $13,130 remains lower than 

Offer B. The cost of Offer B is therefore 

unreasonable (see 25.106(b)(1)(ii)). The 

25.106(b)(2) procedures do not apply. 

Award on Offer C at $10,100 (see 

25.502(c)(4)(i)). 

* * * * * 

(c)(1) Example 3. 

Offer A ..................................................... $14,000 Domestic end product (complies with the required domestic content), small business. 

Offer B ..................................................... 12,500 U.S.-made end product (not domestic, exceeds 55% domestic content), small 

business. 

Offer C ..................................................... 10,100 U.S.-made end product (not domestic, with less than 55% domestic content), 

small business. 

(2) Analysis: This acquisition is for 

end products for use in the United 

States and is set aside for small business 

concerns. The Buy American statute 

applies. Since the acquisition value is 

less than $25,000 and the acquisition is 

set aside, none of the trade agreements 

apply. Perform the steps in 25.502(a). 

Offers B and C are initially evaluated as 

foreign end products, because they are 

the products of small businesses but are 

not domestic end products (see 

25.502(c)(4)). Offer C is the low offer. 

After applying the 30 percent factor, the 

evaluated price of Offer C is $13,130. 

The resulting evaluated price of $13,130 

remains lower than Offer A. The cost of 

Offer A is therefore unreasonable. Offer 

B is then treated as a domestic offer, 

because it is for a U.S.-made end 

product that exceeds 55 percent 

domestic content (see 25.106(b)(2)). 

Offer B is determined reasonable 

because it is lower than the $13,130 

evaluated price of Offer C. Award on 

Offer B at $12,500. 

■ 17. Amend section 25.504–4 by 

adding paragraph (c) to read as follows: 

25.504–4 Group award basis. 

* * * * * 

(c) Example 3. 

Item 

Offers 

A B C 

1 ......................... DO = $17,800 ........................................ FO (>55%) = $16,000 ............................ FO (<55%) = $11,200 

2 ......................... FO (>55%) = $9,000 .............................. FO (>55%) = $8,500 .............................. DO = $10,200 

3 ......................... FO (<55%) = $11,200 ............................ FO (>55%) = $12,000 ............................ FO (<55%) = $11,000 

4 ......................... DO = $10,000 ........................................ DO = $9,000 .......................................... FO (<55%) = $6,400 

Total ............ $48,000 .................................................. $45,500 .................................................. $38,800 

Key: 

DO=Domestic end product (complies with the required domestic content). 

FO >55% = Foreign end product with domestic content exceeding 55%. 

FO <55% = Foreign end product with domestic content of 55% or less. 

Problem: The solicitation specifies 

award on a group basis. Assume only 

the Buy American statute applies (i.e., 

no trade agreements apply) and the 

acquisition cannot be set aside for small 

business concerns. All offerors are large 

businesses. 

Analysis: (see 25.503(d)). 

STEP 1: Determine which of the offers 

are domestic (see 25.503(d)(1)): 

Domestic 

(percent) Determination 

A ........................ $17,800 (Offer A1) + $10,000 (Offer A4) = $27,800 ................................................................. Domestic. 

$27,800/$48,000 (Offer A Total) = 58% 

B ........................ $9,000 (Offer B4)/$45,500 (Offer B Total) = 19.8% ................................................................... Foreign. 

C ........................ $10,200 (Offer C2)/$38,800 (Offer C Total) = 26.3% ................................................................ Foreign. 


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STEP 2: Determine which offer, 

domestic or foreign, is the low offer. If 

the low offer is a foreign offer, apply the 

evaluation factor (see 25.503(d)(2)). The 

low offer (Offer C) is a foreign offer. 

Therefore, apply the factor to the low 

offer. Addition of the 20 percent factor 

(use 30 percent if Offer A is a small 

business) to Offer C yields an evaluated 

price of $46,560 ($38,800 + 20 percent). 

Offer C remains the low offer. 

STEP 3: Determine if there is a foreign 

offer that could be treated as a domestic 

offer (see 25.106(b)(2) and 25.503(d)(2)). 

Amount of domestic content 

(percent) Determination 

A ........................ N/A .............................................................................................................................................. N/A. 

B ........................ $9,000 (Offer B4)/$45,500 (Offer B Total) $ = 19.8% is domestic AND ................................... Can be treated as domestic. 

$16,000 (Offer B1) + $8,500 (Offer B2) + $12,000 (Offer B3) = $36,500. 

$36,500/$45,500 (Offer B Total) = 80.2% can be treated as domestic. 

19.8% + 80.2% = 100% is domestic or can be treated as domestic. 

C ........................ $10,200 (Offer C2)/$38,800 (Offer C Total) = 26.3% is domestic ............................................. Foreign. 

STEP 4: If there is a foreign offer that 

could be treated as a domestic offer, 

compare the evaluated price of the low 

offer to the price of the offer treated as 

domestic (see 25.503(d)(3)). Offer B can 

be treated as a domestic offer ($45,500). 

The evaluated price of the low offer 

(Offer C) is $46,560. Award on Offer B. 

■ 18. Amend section 25.1101 by adding 

paragraph (g) to read as follows: 

25.1101 Acquisition of supplies. 

* * * * * 

(g) Insert the clause at 52.225–XX, 

Domestic Content Reporting 

Requirement—Supplies, in solicitations 

and contracts containing the clause at 

52.225–1 or 52.225–3. 

■ 19. Amend section 25.1102 by adding 

paragraph (f) to read as follows: 

25.1102 Acquisition of construction. 

* * * * * 

(f) Insert the clause at 52.225–YY, 

Domestic Content Reporting 

Requirement—Construction Materials, 

in solicitations and contracts containing 

the clause at 52.225–9 or 52.225–11. 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 20. Amend section 52.212–3 by— 

■ a. Revising the date of the provision; 

■ b. In paragraph (f)(1)(i) removing the 

word ‘‘product.’’ and adding the phrase 

‘‘product and that each domestic end 

product listed in paragraph (f)(3) of this 

provision contains a critical 

component.’’ in its place; 

■ c. Adding two sentences to the end of 

paragraph (f)(1)(ii); 

■ d. Redesignating paragraph (f)(1)(iii) 

as paragraph (f)(1)(iv) and adding a new 

paragraph (f)(1)(iii); 

■ e. Removing from the newly 

redesignated paragraph (f)(1)(iv) ‘‘The 

terms ‘‘domestic end product,’’ and 

adding ‘‘The terms ‘‘critical 

component,’’ ‘‘domestic end product,’’ 

in its place; 

■ f. Revising the table in paragraph 

(f)(2); 

■ g. Redesignating paragraph (f)(3) as 

paragraph (f)(4) and adding a new 

paragraph (f)(3); 

■ h. In newly redesignated paragraph 

(f)(4) remove the word ‘‘Part’’ and 

adding the word ‘‘part’’ in its place; 

■ i. In paragraph (g)(1)(i)(A) removing 

the word ‘‘product.’’ and adding the 

phrase ‘‘product and that each domestic 

end product listed in paragraph 

(g)(1)(iv) of this provision contains a 

critical component.’’ in its place; 

■ j. In paragraph (g)(1)(i)(B) removing 

the phrases ‘‘Peruvian end product,’’ 

and ‘‘domestic end product,’’ and 

adding in their place ‘‘Peruvian end 

product,’’ ‘‘critical component,’’ 

‘‘domestic end product,’’; 

■ k. Adding two sentences at the end of 

paragraph (g)(1)(iii) and revising the 

table; 

■ l. Redesignating paragraph (g)(1)(iv) as 

paragraph (g)(1)(v) and adding a new 

paragraph (g)(1)(iv); and 

■ m. In newly redesignated paragraph 

(g)(1)(v) removing the word ‘‘Part’’ and 

adding the word ‘‘part’’ in its place. 

The revisions and additions read as 

follows: 

52.212–3 Offeror Representations and 

Certifications—Commercial Items. 

* * * * * 

Offeror Representations and Certifications— 

Commercial Items (DATE) 

* * * * * 

(f) * * * 

(1) * * * 

(ii) * * * The Offeror shall also indicate 

whether these foreign end products exceed 

55 percent domestic content. If the 

percentage of the domestic content is 

unknown, select ‘‘no’’. 

(iii) The Offeror shall separately list the 

line item numbers of domestic end products 

that contain a critical component. 

* * * * * 

(2) * * * 

Line item No. Country of origin Exceeds 55% domestic content 

(yes/no) 

(3) Domestic end products containing a 

critical component: 

Line Item No. llllllllllllll

[List as necessary] 

(g)(1) * * * 

(iii) * * * The Offeror shall also indicate 

whether these foreign end products exceed 

55 percent domestic content. If the 

percentage of the domestic content is 

unknown, select ‘‘no’’. 

Other Foreign End Products: 


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Line item No. Country of origin Exceeds 55% domestic content 

(yes/no) 

(iv) The Offeror shall list the line item 

numbers of domestic end products that 

contain a critical component. 

Line Item No. llllllllllllll

[List as necessary] 

* * * * * 

■ 21. Amend section 52.212–5 by— 

■ a. Revising the date of the clause; 

■ b. Removing from paragraph (b)(48) 

‘‘(JAN 2021)’’ and adding ‘‘(DATE)’’ in 

its place; and 

■ c. Removing from paragraph (b)(49)(i) 

‘‘(JAN 2021)’’ and adding ‘‘(DATE)’’ in 

its place; and 

■ d. Redesignating paragraphs (b)(53) 

through (b)(63) as paragraphs (b)(54) 

through (b)(64) and adding a new 

paragraph (b)(53). 

The revision and addition reads as 

follows: 

52.212–5 Contract Terms and Conditions 

Required To Implement Statutes or 

Executive Orders—Commercial Items. 

* * * * * 

Contract Terms and Conditions Required To 

Implement Statutes or Executive Orders— 

Commercial Items (DATE) 

* * * * * 

(b) * * * 

l(53) 52.225–XX, Domestic Content 

Reporting Requirement—Supplies (DATE) 

(Executive Order 14005). 

* * * * * 

■ 22. Amend section 52.213–4 by— 

■ a. Revising the date of the clause; 

■ b. In paragraph (b)(1)(xvii)removing 

the words ‘‘(JAN 2021)’’ and adding the 

word ‘‘(DATE)’’ in its place; 

■ c. Redesignating paragraphs 

(b)(1)(xviii) through (b)(1)(xxi) as 

paragraphs (b)(1)(xx) through 

(b)(1)(xxiii) and adding new paragraphs 

(b)(1)(xviii) and (b)(1)(xix). 

The revisions and additions read as 

follows: 

52.213–4 Terms and Conditions— 

Simplified Acquisitions (Other Than 

Commercial Items). 

* * * * * 

Terms and Conditions—Simplified 

Acquisitions (Other Than Commercial Items) 

(DATE) 

(b) * * * 

(1) * * * 

(xviii) 52.225–XX, Domestic Content 

Reporting Requirement—Supplies (DATE) 

(Executive Order 14005) (Applies to contracts 

containing the clause at 52.225–1 or 52.225– 

3). 

(xix) 52.225–YY, Domestic Content 

Reporting Requirement—Construction 

Materials (DATE) (Executive Order 14005) 

(Applies to contracts containing the clause at 

52.225–9). 

* * * * * 

■ 23. Amend section 52.225–1 by— 

■ a. Revising the date of the clause; 

■ b. Adding, in alphabetical order, the 

definition of ‘‘Critical component’’; and 

■ c. In the definition of ‘‘Domestic end 

product’’ revising the first sentence of 

paragraph (1)(ii)(A). 

The addition and revision read as 

follows: 

52.225–1 Buy American—Supplies. 

* * * * * 

Buy American—Supplies (DATE) 

(a) * * * 

Critical component means a component 

that is mined, produced, or manufactured in 

the United States and deemed critical to the 

U.S. supply chain. The list of critical 

components is at FAR 25.105. 

Domestic end product means— 

(1) * * * 

(ii) * * * 

(A) The cost of its components mined, 

produced, or manufactured in the United 

States exceeds 60 percent of the cost of all 

its components, except that the percentage 

will be 65 percent for items delivered in 

calendar years 2024 through 2028 and 75 

percent for items delivered starting in 

calendar year 2029. * * * 

* * * * * 

■ 24. Amend section 52.225–2 by— 

■ a. Revising the date of the provision; 

■ b. Revising paragraph (a)(1); 

■ c. Adding two sentences at the end of 

paragraph (a)(2); 

■ d. Redesignating paragraph (a)(3) as 

paragraph (a)(4) and adding a new 

paragraph (a)(3); 

■ e. In newly redesignated paragraph 

(a)(4) removing the phrase ‘‘The terms’’ 

and adding the phrase ‘‘The terms 

‘‘critical component,’’ ’’ in its place; 

■ f. Revising the table in paragraph (b); 

■ g. Redesignating paragraph (c) as 

paragraph (d) and adding a new 

paragraph (c). 

The revisions and additions read as 

follows: 

52.225–2 Buy American Certificate. 

* * * * * 

Buy American Certificate (DATE) 

(a)(1) The Offeror certifies that each end 

product, except those listed in paragraph (b) 

of this provision, is a domestic end product 

and that each domestic end product listed in 

paragraph (c) of this provision contains a 

critical component. 

(2) * * * The Offeror shall also indicate 

whether these foreign end products exceed 

55 percent domestic content. If the 

percentage of the domestic content is 

unknown, select ‘‘no’’. 

(3) The Offeror shall separately list the line 

item numbers of domestic end products that 

contain a critical component. 

* * * * * 

(b) * * * 

Line item No. Country of origin Exceeds 55% domestic content 

(yes/no) 

(c) Domestic end products containing a 

critical component: 

Line Item No. llllllllllllll

[List as necessary] 

* * * * * 

■ 25. Amend section 52.225–3 by— 

■ a. Revising the date of the clause; 

■ b. Adding, in alphabetical order, the 

definition of ‘‘Critical component’’; 


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■ c. In the definition ‘‘Domestic end 

product’’ revising the first sentence of 

paragraph (1)(ii)(A). 

The addition and revision read as 

follows: 

52.225–3 Buy American—Free Trade 

Agreements—Israeli Trade Act. 

* * * * * 

Buy American—Free Trade Agreements— 

Israeli Trade Act (DATE) 

(a) * * * 

Critical component means a component 

that is mined, produced, or manufactured in 

the United States and deemed critical to the 

U.S. supply chain. The list of critical 

components is at FAR 25.105. 

Domestic end product means— 

(1) * * * 

(ii) * * * 

(A) The cost of its components mined, 

produced, or manufactured in the United 

States exceeds 60 percent of the cost of all 

its components, except that the percentage 

will be 65 percent for items delivered in 

calendar years 2024 through 2028 and 75 

percent for items delivered starting in 

calendar year 2029. * * * 

* * * * * 

■ 26. Amend section 52.225–4 by— 

■ a. Revising the date of the provision; 

■ b. Revising paragraph (a)(1); 

■ c. In paragraph (a)(2) removing the 

phrases ‘‘Peruvian end product,’’ 

‘‘domestic end product,’’ and adding in 

their place ‘‘Peruvian end product,’’ 

‘‘critical component,’’ ‘‘domestic end 

product,’’; 

■ d. Redesignating paragraph (c) as 

paragraph (c)(1) and adding two 

sentences at the end of newly 

designated paragraph (c)(1); 

■ e. Revising the table in newly 

designated paragraph (c)(1); and 

■ f. Adding paragraph (c)(2). 

The revisions and additions read as 

follows: 

52.225–4 Buy American—Free Trade 

Agreements—Israeli Trade Act Certificate. 

* * * * * 

Buy American—Free Trade Agreements— 

Israeli Trade Act Certificate (DATE) 

(a)(1) The Offeror certifies that each end 

product, except those listed in paragraph (b) 

or (c)(1) of this provision, is a domestic end 

product and that each domestic end product 

listed in paragraph (c)(2) of this provision 

contains a critical component. 

* * * * * 

(c)(1) * * * The Offeror shall also indicate 

whether these foreign end products exceed 

55 percent domestic content. If the 

percentage of the domestic content is 

unknown, select ‘‘no’’. 

* * * * * 

Line item No. Country of origin Exceeds 55% domestic content 

(yes/no) 

* * * * * 

(2) The Offeror shall list the line item 

numbers of domestic end products that 

contain a critical component. 

Line Item No. llllllllllllll

[List as necessary] 

* * * * * 

■ 27. Amend section 52.225–9 by— 

■ a. Revising the date of the clause; 

■ b. Adding, in alphabetical order, the 

definitions of ‘‘Critical component’’ and 

‘‘Critical item’’; 

■ c. In the definition ‘‘Domestic 

construction material’’ revising the first 

sentence of paragraph (1)(ii)(A); and 

■ d. Revising paragraph (b)(3)(i). 

The revisions and additions read as 

follows: 

52.225–9 Buy American—Construction 

Materials. 

* * * * * 

Buy American—Construction Materials 

(DATE) 

(a) * * * 

Critical component means a component 

that is mined, produced, or manufactured in 

the United States and deemed critical to the 

U.S. supply chain. The list of critical 

components is at FAR 25.105. 

Critical item means a domestic 

construction material or domestic end 

product that is deemed critical to U.S. supply 

chain resiliency. The list of critical items is 

at FAR 25.105. 

Domestic construction material means— 

(1) * * * 

(ii) * * * 

(A) The cost of its components mined, 

produced, or manufactured in the United 

States exceeds 60 percent of the cost of all 

its components, except that the percentage 

will be 65 percent for items delivered in 

calendar years 2024 through 2028 and 75 

percent for items delivered starting in 

calendar year 2029. 

* * * * * 

(b) * * * 

(3) * * * 

(i) The cost of domestic construction 

material would be unreasonable. 

(A) For domestic construction material that 

are not critical items or do not contain 

critical components. 

(1) The cost of a particular domestic 

construction material subject to the 

requirements of the Buy American statute is 

unreasonable when the cost of such material 

exceeds the cost of foreign material by more 

than 20 percent; 

(2) For construction material that does not 

consist wholly or predominantly of iron or 

steel or a combination of both, if the cost of 

a particular domestic construction material is 

determined to be unreasonable or there is no 

domestic offer received, and the low offer is 

for foreign construction material that is 

manufactured in the United States and does 

not exceed 55 percent domestic content, the 

Contracting Officer will treat the lowest offer 

of foreign construction material that exceeds 

55 percent domestic content as a domestic 

offer and determine whether the cost of that 

offer is unreasonable by applying the 

evaluation factor listed in paragraph 

(b)(3)(i)(A)(1) of this clause. 

(3) The procedures in paragraph 

(b)(3)(i)(A)(2) will no longer apply as of 

January 1, 2030. 

(B)(1) For domestic construction material 

that are critical items or contain critical 

components. The cost of a particular 

domestic construction material that is a 

critical item or contains critical components, 

subject to the requirements of the Buy 

American statute, is unreasonable when the 

cost of such material exceeds the cost of 

foreign material by more than 20 percent plus 

the additional preference factor identified for 

the critical item or construction material 

containing critical components listed at FAR 

25.105. 

(2) For construction material that does not 

consist wholly or predominantly of iron or 

steel or a combination of both, if the cost of 

a particular domestic construction material is 

determined to be unreasonable or there is no 

domestic offer received, and the low offer is 

for foreign construction material that does 

not exceed 55 percent domestic content, the 

Contracting Officer will treat the lowest 

foreign offer of construction material that is 

manufactured in the United States and 

exceeds 55 percent domestic content as a 

domestic offer, and determine whether the 

cost of that offer is unreasonable by applying 

the evaluation factor listed in paragraph 

(b)(3)(i)(B)(1) of this clause. 

(3) The procedures in paragraph 

(b)(3)(i)(B)(2) will no longer apply as of 

January 1, 2030. 

* * * * * 

■ 28. Amend section 52.225–11 by— 

■ a. Revising the date of the clause; 

■ b. Adding, in alphabetical order, the 

definitions of ‘‘Critical component’’ and 

‘‘Critical item’’; 


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Federal Register / Vol. 86, No. 144 / Friday, July 30, 2021 / Proposed Rules 40995 

■ c. In the definition ‘‘Domestic 

construction material’’ revising the first 

sentence of paragraph (1)(ii)(A); and 

■ d. Revising paragraph (b)(4)(i). 

The revisions and additions read as 

follows: 

52.225–11 Buy American—Construction 

Materials Under Trade Agreements. 

* * * * * 

Buy American—Construction Materials 

Under Trade Agreements (DATE) 

(a) * * * 

Critical component means a component 

that is mined, produced, or manufactured in 

the United States and deemed critical to the 

U.S. supply chain. The list of critical 

components is at FAR 25.105. 

Critical item means a domestic 

construction material or domestic end 

product that is deemed critical to U.S. supply 

chain resiliency. The list of critical items is 

at FAR 25.105. 

* * * * * 

Domestic construction material means— 

(1) * * * 

(ii) * * * 

(A) The cost of its components mined, 

produced, or manufactured in the United 

States exceeds 60 percent of the cost of all 

its components, except that the percentage 

will be 65 percent for items delivered in 

calendar years 2024 through 2028 and 75 

percent for items delivered starting in 

calendar year 2029. 

* * * * * 

(b) * * * 

(4) * * * 

(i) The cost of domestic construction 

material would be unreasonable. 

(A) For domestic construction material that 

are not critical items or do not contain 

critical components. 

(1) The cost of a particular domestic 

construction material subject to the 

restrictions of the Buy American statute is 

unreasonable when the cost of such material 

exceeds the cost of foreign material by more 

than 20 percent; 

(2) For construction material that does not 

consist wholly or predominantly of iron or 

steel or a combination of both, if the cost of 

a particular domestic construction material is 

determined to be unreasonable or there is no 

domestic offer received, and the low offer is 

for foreign construction material that does 

not exceed 55 percent domestic content, the 

Contracting Officer will treat the lowest offer 

of foreign construction material that is 

manufactured in the United States and 

exceeds 55 percent domestic content as a 

domestic offer and determine whether the 

cost of that offer is unreasonable by applying 

the evaluation factor listed in paragraph 

(b)(4)(i)(A)(1) of this clause. 

(3) The procedures in paragraph 

(b)(4)(i)(A)(2) do not apply effective January 

1, 2030. 

(B) For domestic construction material that 

are critical items or contain critical 

components. (1) The cost of a particular 

domestic construction material that is a 

critical item or contains critical components, 

subject to the requirements of the Buy 

American statute, is unreasonable when the 

cost of such material exceeds the cost of 

foreign material by more than 20 percent plus 

the additional preference factor identified for 

the critical item or construction material 

containing critical components listed at FAR 

25.105. 

(2) For construction material that does not 

consist wholly or predominantly of iron or 

steel or a combination of both, if the cost of 

a particular domestic construction material is 

determined to be unreasonable or there is no 

domestic offer received, and the low offer is 

for foreign construction material that does 

not exceed 55 percent domestic content, the 

Contracting Officer will treat the lowest offer 

of foreign construction material that is 

manufactured in the United States and 

exceeds 55 percent domestic content as a 

domestic offer, and determine whether the 

cost of that offer is unreasonable by applying 

the evaluation factor listed in paragraph 

(b)(4)(i)(B)(1) of this clause. 

(3) The procedures in paragraph 

(b)(4)(i)(B)(2) will no longer apply as of 

January 1, 2030. 

* * * * * 

■ 29. Add section 52.225–XX to read as 

follows: 

52.225–XX Domestic Content Reporting 

Requirement—Supplies. 

As prescribed in 25.1101(g), insert the 

following clause: 

Domestic Content Reporting Requirement— 

Supplies (DATE) 

(a) Definitions. As used in this clause— 

Critical item means a domestic 

construction material or domestic end 

product that is deemed critical to the U.S. 

supply chain. The list of critical items is at 

FAR 25.105. 

The terms Critical component, Domestic 

end product, and End product are defined in 

the clause of this solicitation entitled ‘‘Buy 

American-Supplies’’ or ‘‘Buy American-Free 

Trade Agreements-Israeli Trade Act’’. 

(b) Applicability. This clause does not 

apply to commercially available off-the-shelf 

(COTS) items. 

(c) Reporting requirement. Within 15 days 

of award, the Contractor shall provide the 

contract number, the amount of domestic 

content in each critical item, and the amount 

of domestic content in each domestic end 

product containing a critical component, to 

the Made in America Office under the Office 

of Management and Budget via 

MadeInAmerica@omb.eop.gov: 

Line item No. Critical component/end 

product 

Percentage of domestic 

content 

[List as necessary] 

(End of clause) 

■ 30. Add section 52.225–YY to read as 

follows: 

52.225–YY Domestic Content Reporting 

Requirement—Construction Materials. 

As prescribed in 25.1102(f), insert the 

following clause: 

Domestic Content Reporting Requirement— 

Construction Materials (DATE) 

(a) Definitions. As used in this clause— 

The terms Critical component, Critical 

item, and Domestic construction material, are 

defined in the clause of this contract entitled 

‘‘Buy American-Construction Materials’’ or 

‘‘Buy American-Construction Materials under 

Trade Agreements’’. 

(b) Applicability. This clause does not 

apply to commercially available off-the-shelf 

(COTS) items. 

(c) Reporting requirement. Within 15 days 

of award, the Contractor shall provide the 

contract number, the amount of domestic 

content in each critical item, and the amount 

of domestic content in each domestic 

construction material containing a critical 

component, to the Made in America Office 

under the Office of Management and Budget 

via MadeInAmerica@omb.eop.gov: 

Line item No. Critical component/end 

product 

Percentage of domestic 

content 


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40996 Federal Register / Vol. 86, No. 144 / Friday, July 30, 2021 / Proposed Rules 

Line item No. Critical component/end 

product 

Percentage of domestic 

content 

[List as necessary] 

(End of clause) 

[FR Doc. 2021–15881 Filed 7–29–21; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2020–0125; 

FF09E22000 FXES11130900000 212] 

RIN 1018–BE41 

Endangered and Threatened Wildlife 

and Plants; Removing Adiantum 

vivesii From the Federal List of 

Endangered and Threatened Plants 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

remove the plant Adiantum vivesii (no 

common name) from the Federal List of 

Endangered and Threatened Plants 

(List). Our review of the best available 

scientific and commercial data, 

including peer reviewer comments 

received on the 5-year status review 

(2008), indicate that A. vivesii is not a 

distinct species, but rather a sterile 

hybrid that does not have the capacity 

to establish a lineage that could be lost 

to extinction. Therefore, A. vivesii is not 

a listable entity under the Endangered 

Species Act of 1973, as amended (Act). 

DATES: We will accept comments 

received or postmarked on or before 

September 28, 2021. Comments 

submitted electronically using the 

Federal eRulemaking Portal (see 

ADDRESSES, below) must be received by 

11:59 p.m. Eastern Time on the closing 

date. We must receive requests for a 

public hearing, in writing, at the address 

shown in FOR FURTHER INFORMATION

CONTACT by September 13, 2021. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: http://

www.regulations.gov. In the Search box, 

enter FWS–R4–ES–2020–0125, which is 

the docket number for this rulemaking. 

Then, click on the Search button. On the 

resulting page, in the Search panel on 

the left side of the screen, under the 

Document Type heading, check the 

Proposed Rule box to locate this 

document. You may submit a comment 

by clicking on ‘‘Comment.’’ 

(2) By hard copy: Submit by U.S. mail 

to: Public Comments Processing, Attn: 

FWS–R4–ES–2020–0125, U.S. Fish and 

Wildlife Service, MS: PRB/3W, 5275 

Leesburg Pike, Falls Church, VA 22041– 

3803. 

We request that you send comments 

only by the methods described above. 

We will post all comments on http://

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see 

Information Requested, below, for more 

information). 

Availability of supporting materials: 

This proposed rule and supporting 

documents, including the 5-year review, 

are available at https://www.fws.gov/ 

southeast/caribbean/ and http://

www.regulations.gov under Docket No. 

FWS–R4–ES–2020–0125. 

FOR FURTHER INFORMATION CONTACT: 

Edwin Mun ̃iz, Field Supervisor, 

Caribbean Ecological Services Field 

Office, P.O. Box 491, Boquero ́n, PR 

00622; telephone 787–851–7297. 

Persons who use a telecommunications 

device for the deaf (TDD) may call the 

Federal Relay Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Information Requested 

We intend that any final action 

resulting from this proposed rule will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested parties concerning this 

proposed rule. 

We particularly seek comments 

concerning: 

(1) Reasons we should or should not 

remove A. vivesii from the List of 

Endangered and Threatened Plants. 

(2) The location and characteristics of 

any additional populations not 

considered in previous work that might 

have bearing on the current taxonomic 

interpretation. 

(3) Additional information concerning 

range, distribution, and population 

sizes, particularly if it would assist in 

the evaluation of the accuracy of the 

current taxonomic interpretation. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

Please note that submissions merely 

stating support for, or opposition to, the 

action under consideration without 

providing supporting information, 

although noted, will not be considered 

in making a determination, as section 

4(b)(1)(A) of the Act directs that 

determinations as to whether any 

species is an endangered or a threatened 

species must be made ‘‘solely on the 

basis of the best scientific and 

commercial data available.’’ 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in 

ADDRESSES. We request that you send 

comments only by the methods 

described in ADDRESSES. 

If you submit information via http:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy submissions 

on http://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on http://www.regulations.gov. 

Because we will consider all 

substantial comments and information 

received during the comment period, 

our final determinations may differ from 

this proposal. Based on the new 

information we receive (and any 

comments on that new information), we 

may conclude that the species is a valid 

listable entity and should remained 

listed as endangered, or be reclassified 

from endangered to threatened. 

Public Hearing 

Section 4(b)(5) of the Act provides for 

a public hearing on this proposal, if 

requested. Requests must be received by 

the date specified in DATES. Such 

requests must be sent to the address 


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