[Federal Register Volume 87, Number 14 (Friday, January 21, 2022)]
[Notices]
[Pages 3385-3388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01169]


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DEPARTMENT OF THE TREASURY


Federal Financial Assistance Infrastructure Programs Subject to 
the Build America, Buy America Provisions of the Infrastructure 
Investment and Jobs Act

AGENCY: Department of the Treasury.

ACTION: Notice.

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SUMMARY: Pursuant to section 70913 of the Infrastructure Investment and 
Jobs Act, the Department of the Treasury has prepared the report 
provided below regarding its financial assistance programs that provide 
funding that may be used by recipients for infrastructure projects.

FOR FURTHER INFORMATION CONTACT: 
    For further information about the programs administered by the 
Office of Recovery Programs, contact Brette Fishman, Director, Office 
of Grant Policy, Office of Recovery Programs, at 
[email protected] or (844) 529-9527.
    For further information about the RESTORE Act, Direct Component 
program administered by the Office of Gulf Coast Restoration, contact 
Maureen Klovers, Program Director, Office of Gulf Coast Restoration at 
[email protected] or (844) 529-9527.

SUPPLEMENTARY INFORMATION:

Treasury's Identification of Federal Financial Assistance 
Infrastructure Programs Subject to the Build America, Buy America 
Provisions of the Infrastructure Investment and Jobs Act

1. Introduction

    On November 15, 2021, President Biden signed into law the 
Infrastructure Investment and Jobs Act (IIJA), which includes the 
``Build America, Buy America Act'' (the Act). This Act ensures that 
Federal infrastructure programs require the use of materials produced 
in the United States, increases the requirement for American-made 
content, and strengthens the waiver process associated with Buy America 
provisions.
    The Act requires that within 60 days of its enactment, January 14, 
2022, each agency must submit to the Office of Management and Budget 
(OMB) and Congress and publish in the Federal Register a report (``60-
day report'') listing all Federal financial assistance programs for 
infrastructure administered by the agency. In these 60-day reports, 
agencies are required to identify and provide a list of which of these 
programs are ``deficient,'' as defined in the Act.
    In an effort to aid agencies towards compliance with Sections 70913 
(Identification of Deficient Programs) and 70914 (Application of Buy 
America Preference) of the IIJA, OMB issued memorandum M-22-08, 
``Identification of Federal Financial Assistance Infrastructure 
Programs Subject to the Build America, Buy America Provisions of the 
Infrastructure Investment and Jobs Act'' on December 20, 2021. This 
memorandum provides criteria that assist agencies in identifying which 
programs constitute infrastructure programs and helps them determine if 
any of these programs are considered deficient as described in section 
70913(c) of the IIJA.
    OMB memorandum M-22-08 also informs agencies regarding items that 
are required to be contained in the 60-

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day report for each infrastructure program, which includes identifying 
all domestic content procurement preferences applicable to the program, 
providing details on any preference requirement, and providing a 
description of the types of infrastructure project that receive funding 
under the program. Additionally, for each program, agencies should 
include the number of recipients and the available funds for the 
program in each fiscal year.
    This report errs on the side of over-inclusiveness, given the 
requirement to submit this report at this time. As instructed by OMB, 
Treasury has included all programs for which funds may be obligated for 
infrastructure under any award. After OMB releases implementation 
guidance as outlined in Section 70915 of the IIJA, Treasury will re-
evaluate its identification of agency programs that are subject to 
Build America, Buy America requirements.

2. Financial Assistance Programs for Infrastructure

    Treasury's main organizational components that provide financial 
assistance include: The Internal Revenue Service and the Departmental 
Offices (including the Community Development Financial Institutions 
Fund and the Office of Recovery Programs (ORP)). Of those components, 
based on program analysis, only DO has Federal financial assistance 
programs related to infrastructure that merit inclusion in the 60-day 
report. This section identifies and describes the active programs 
applicable to the IIJA.

2.1 ORP Active Financial Assistance Programs for Infrastructure

     Coronavirus State and Local Fiscal Recovery Fund CFDA # 
21.027 (SLFRF)--Public Law 117-2. Sections 602 and 603 of the Social 
Security Act, as added by section 9901 of the American Rescue Plan Act 
(the ARP Act) established the Coronavirus State Fiscal Recovery Fund 
and Coronavirus Local Fiscal Recovery Fund respectively (referred to as 
the ``Coronavirus State and Local Fiscal Recovery Funds'' or 
``SLFRF''). SLFRF provides $350 billion in total funding for Treasury 
to make payments to States (defined to include the District of 
Columbia), U.S. Territories (defined to include Puerto Rico, U.S. 
Virgin Islands, Guam, Northern Mariana Islands, and American Samoa), 
Tribes, Metropolitan cities, Counties, Consolidated Governments, and 
(through States) Nonentitlement units of local government for eligible 
activities outlined in sections 602(c) and 603(c) of the Social 
Security Act, and Treasury's implementing regulations, 31 CFR part 35.
     Capital Projects Fund CFDA # 21.029 (CPF)--Public Law 117-
2. Title III Section 604 of the ARP Act established the Capital 
Projects Fund and provides $10 billion for Treasury to make payments to 
States, Tribes, Territories, and Freely Associated States to carry out 
critical capital projects that directly enable work, education, and 
health monitoring including remote options in response to the public 
health emergency with respect to COVID-19.
     Homeownership Assistance Fund CFDA # 21.026 (HAF)--Public 
Law 117-2. Title III, Subtitle B, Section 3206 of the ARP Act 
established the Homeowner Assistance Fund and provides $9.9 billion for 
Treasury to make payments to States (defined to include the District of 
Columbia, Puerto Rico, U.S. Virgin Islands, Guam, Northern Mariana 
Islands, and American Samoa), Tribes or tribally designated housing 
entities, as applicable, and the Department of Hawaiian Home Lands to 
mitigate financial hardships associated with the coronavirus pandemic, 
including for the purposes of preventing homeowner mortgage 
delinquencies, defaults, foreclosures, loss of utilities or home energy 
services, and displacements of homeowners experiencing financial 
hardship after January 21, 2020, through qualified expenses related to 
mortgages and housing.

2.2 DO Active Financial Assistance Programs for Infrastructure

    The Resources and Ecosystems Sustainability, Tourist Opportunities, 
and Revived Economies of the Gulf Coast States Act of 2012 (RESTORE 
Act) Direct Component Program, CFDA # 21.015--On July 6, 2012, the 
President signed into law the RESTORE Act to respond to the April 20, 
2010 Deepwater Horizon Oil Spill in the Gulf of Mexico and the 
resulting ecological and economic disaster caused by the explosion on, 
and sinking of, the mobile offshore drilling unit Deepwater Horizon. 
The RESTORE Act authorized five grant programs to fund programs, 
projects, and activities that restore and protect the environment and 
economy of the Gulf Coast region. Treasury's Office of Gulf Coast 
Restoration administers two of the five grant programs, the Direct 
Component and Centers of Excellence Research Grants Programs, which are 
listed under a single CFDA number. The RESTORE Act also established the 
Gulf Coast Restoration Trust Fund that is funded by eighty percent of 
the administrative and civil penalties paid by the responsible parties 
pursuant to a court order, negotiated settlement, or other instrument 
under section 311 of the Federal Water Pollution Control Act in 
connection with the Deepwater Horizon oil spill. The Trust Fund 
provides funding for the five federal financial assistance programs 
authorized by the RESTORE Act (not appropriated funds). The Direct 
Component program provides funding to four Gulf Coast States, twenty-
three Florida counties, and twenty Louisiana parishes, and the Centers 
of Excellence Research Grants Program provide funding to five states 
for eligible activities outlined in the RESTORE Act and Treasury's 
implementing regulations, 31 CFR part 34. The Direct Component Program 
funds some infrastructure projects as defined by Section 70912(5) of 
the IIJA, but many projects funded by the Direct Component Program are 
not for infrastructure. The Centers of Excellence Research Grants 
Program does not fund any infrastructure. See Section 3 for further 
details.

3. Financial Assistance Infrastructure Programs Deficiency 
Determination

    Table 3-1 depicts the deficiency status of each Treasury financial 
assistance infrastructure program, as it relates to Section 70914 \1\ 
of the IIJA.
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    \1\ Section 70914 of the IIJA provides that, as of May 14, 2022, 
none of the funds made available for a Federal financial assistance 
program for infrastructure, including each applicable program, may 
be obligated for a project unless all of the iron, steel, 
manufactured products, and construction materials used in the 
project are produced in the United States.

[[Page 3387]]



                                                      Table 3-1 Deficiency Determination by Program
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                                                                                              Type of
                                                                     Domestic content      infrastructure      # of recipients
  Entity         Program       Deficiency status     Reason for        procurement     projects that receive   in FY 19, 20 and   FY 19, 20 and 21 total
                                      \2\            deficiency         preference       funding under the            21            available funding
                                                                      applicable \3\          program
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ORP.......  SLFRF............  Deficient as of 1/ The program is    NA...............  Recipients have        FY 19-FY 20: NAFY  FY 19, FY 20: NA.
                                14/21.             deficient with                       significant            21: 4,921.        FY 21:
                                                   respect to                           flexibility on how                        $350,000,000,000.
                                                   Section 70914,                       to allocate funds,
                                                   per item 1 of                        and projects may
                                                   section 70913                        include necessary
                                                   (see footnote                        investments in
                                                   3). The Program                      water, sewer, or
                                                   does not plan                        broadband
                                                   to issue awards                      infrastructure; a
                                                   after May of                         broad variety of
                                                   2022.                                investments to
                                                                                        respond to the
                                                                                        public health and
                                                                                        negative economic
                                                                                        impacts of the
                                                                                        pandemic; and a
                                                                                        broad variety of
                                                                                        infrastructure that
                                                                                        might typically be
                                                                                        funded under the
                                                                                        provision of
                                                                                        government services.
            CPF..............  Deficient as of 1/ The program is    NA...............  Recipients have        FY 19-FY 20: NA..  FY 19, FY 20: NA.
                                14/21.             deficient with                       significant           FY 21: NA........  FY 21: NA.
                                                   respect to                           flexibility on how
                                                   Section 70914,                       to allocate funds.
                                                   per item 1 of                        We expect some
                                                   section 70913                        funding to be used
                                                   (see footnote                        for broadband
                                                   3). All awards                       infrastructure
                                                   will be issued                       projects and for
                                                   before May                           construction of
                                                   2022, except                         community centers,
                                                   for a subset of                      and similar
                                                   Tribal awards.                       facilities.
            HAF..............  Deficient as of 1/ The program is    NA...............  Projects include       FY 19-FY 20: NA..  FY 19, FY 20: NA.
                                14/21.             deficient with                       measures to prevent   FY 21: 353.......  FY 21: $9,961,000,000.
                                                   respect to                           homeowner
                                                   Section 70914,                       displacement, such
                                                   per item 1 of                        as home repairs to
                                                   section 70913                        maintain the
                                                   (see footnote                        habitability of a
                                                   3) The Program                       home, including the
                                                   does not plan                        reasonable addition
                                                   to issue awards                      of habitable space
                                                   after May of                         to alleviate
                                                   2022.                                overcrowding, or
                                                                                        assistance to enable
                                                                                        households to
                                                                                        receive clear title
                                                                                        to their properties.
DO........  RESTORE Act......  Deficient as of 1/ The program is    NA...............  The RESTORE Act,       FY 19: 11........  FY 19: $129,970,078.64.
                                14/21.             deficient with                       which authorized the  FY 20: 17........   FY 20: $99,265,125.10.
                                                   Section 70914,                       Direct Component      FY 21: 14 \4\....   FY 21:
                                                   per item 1 of                        Program, lists                            $42,585,192.28.\5\
                                                   section 70913                        eleven eligible
                                                   (see footnote 3                      project or program
                                                   on page 6).                          purposes, two of
                                                                                        which are
                                                                                        ``[i]infrastructure
                                                                                        projects benefitting
                                                                                        the economy or
                                                                                        ecological
                                                                                        resources, including
                                                                                        port
                                                                                        infrastructure'' and
                                                                                        ``[c]coastal flood
                                                                                        protection or
                                                                                        related
                                                                                        infrastructure.''.
                                                                                       The Direct Component-
                                                                                        funded projects with
                                                                                        a primary eligible
                                                                                        purpose of
                                                                                        ``infrastructure''
                                                                                        vary widely. To
                                                                                        date, these have
                                                                                        included building a
                                                                                        roll-on/roll-off
                                                                                        facility at a port,
                                                                                        wastewater treatment
                                                                                        plants, drinking
                                                                                        water treatment
                                                                                        plants, and roads
                                                                                        and bridges, as well
                                                                                        as the construction
                                                                                        or upgrading of
                                                                                        levees, rock
                                                                                        jetties, and other
                                                                                        flood protection
                                                                                        structures.
                                                                                       Other Direct
                                                                                        Component-funded
                                                                                        projects are not
                                                                                        considered to have a
                                                                                        primary purpose of
                                                                                        infrastructure
                                                                                        because they are
                                                                                        aligned to one of
                                                                                        the nine other
                                                                                        Direct Component
                                                                                        eligible purposes,
                                                                                        even though the
                                                                                        projects may involve
                                                                                        construction. For
                                                                                        example, the
                                                                                        construction of an
                                                                                        aquarium falls under
                                                                                        the Direct Component
                                                                                        eligible purpose of
                                                                                        ``[p]promotion of
                                                                                        tourism in the Gulf
                                                                                        Coast Region,
                                                                                        including promotion
                                                                                        of recreational
                                                                                        fishing,'' not an
                                                                                        infrastructure
                                                                                        purpose.
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    \2\ As discussed in M-22-08 and pursuant to the IIJA, an 
infrastructure program is considered deficient and therefore 
inconsistent with section 70914 if: Per section 70913 it does not 
require that all of the iron, steel, manufactured products, and 
construction materials used in the project are produced in the 
United States; it does not issue waivers and written justifications 
as specified in section 70914; or (3) it is subject to a waiver of 
general applicability.
    \3\ Domestic content procurement preferences include the 
following: section 313 of title 23, United States Code; section 
5323(j) of title 49, United States Code; section 22905(a) of title 
49, United States Code; section 50101 of title 49, United States 
Code; section 603 of the Federal Water Pollution Control Act (33 
U.S.C. 1388); section 1452(a)(4) of the Safe Drinking Water Act (42 
U.S.C. 300j-12(a)(4)); section 5035 of the Water Infrastructure 
Finance and Innovation Act of 2014 (33 U.S.C. 3 3914); any domestic 
content procurement preference included in an appropriations Act; 
and any other domestic content procurement preference in Federal law 
(including regulations). It does not include the Uniform Guidance.
    \4\ This is the number of entities receiving new Direct 
Component awards in each of the fiscal years indicated. This does 
not include entities with active awards received in prior years.
    \5\ The figures presented in this column include all new 
Treasury RESTORE Act funded obligations for the Direct Component 
Program (no Centers of Excellence Program obligations are included 
since that program does not fund any infrastructure or 
construction). This encompasses obligations related to all new 
awards, all monetary amendments, and all closeouts (the latter often 
resulting in a deobligation).

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(Authority: Pub. L. No 117-58 (Nov. 15, 2021))

    Dated: January 18, 2022.
Marti Adams,
Executive Secretary.
[FR Doc. 2022-01169 Filed 1-20-22; 8:45 am]
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