Build America, Buy America Waiver Request Data Collection Common Form Emergency Memo

United States
Department of
Agriculture
Office of the
Chief
Financial Officer
1400
Independence
Avenue, SW
Washington, DC
20250

TO:

Brenda Aguilar
Branch Chief
Office of Information and Regulatory Affairs
Office of Management and Budget

THROUGH: Levi Harrell
USDA Information Collection Officer
LYNN
MOANEY

FROM:

Lynn Moaney
Deputy Chief Financial Officer

SUBJECT:

Request for Emergency Approval for a New Information Collection
Request—Build America, Buy America Waiver Request Data
Collection Common Form

Digitally signed by LYNN MOANEY
Date: 2023.01.10 13:39:23 -05'00'

The U.S. Department of Agriculture’s (USDA) Office of the Chief Financial Officer
(OCFO) requests the Office of Management and Budget (OMB) consider an
emergency approval of a new information collection Build America, Buy America
(BABA) Waiver Request Data Collection common form. This new information
collection is essential to USDA agencies and government wide agencies. This
common form will provide the ability to effectively approve waiver requests for
recipients and subrecipients in accordance with the Infrastructure Investment and Jobs
Act (“IIJA”), Pub. L. No. 117-58, which includes the Build America Buy America
Act (Pub. L. No. 117-58 §§ 70901-52) and OMB Memorandum M-22-11 “Initial
Implementation Guidance on Application of Buy America Preference in Federal
Financial Assistance Programs for Infrastructure.”
OMB Memorandum M-22-11 was issued guidance on April 18, 2022 and established
that Buy America Build America provisions should be included in all new or
modified financial assistance awards by May 14, 2022. That timeframe was very
challenging to meet. USDA has processes in place to collect Buy America waivers,
but not one to accommodate this newly imposed data collection. The new data
collection will allow USDA agencies and government wide agencies comply with the
Infrastructure, Investment s and Jobs Act, specifically with the Buy America, Build
American Act provisions and OMB Memorandum M-22-11. This information
collection will be used by all impacted USDA financial assistance-making agencies
and staff offices and is designed for adoption by other governmentwide agencies.
USDA is requesting emergency approval by January 31, 2023, to start accepting the
BABA Waiver Request Data Collection from recipients and subrecipients. This
information collection will assist recipients who need a waiver from the Buy America
requirements to be able to execute their awards. This information collection is
needed quickly as there are projects that have not been obligated, pending this
collection. This information collection will keep projects moving and prevent
immediate delays to critically important infrastructure projects. USDA seeks to
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employ a standard waiver data collection to ensure uniformity across programs and
improve the customer experience by standardizing the USDA waiver request process.

This is a new information collection. At this time, USDA does not know the
number of responses from USDA recipients and subrecipients across USDA
financial assistance programs.
USDA agencies, staff offices and governmentwide agencies need to collect the
following information listed in OMB M-22-11 and additional data elements for
additional information from recipients and subrecipients:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
10.1
10.2
11.
11.1
11.1.1

11.1.2

11.2
11.2.1

11.2.2

Submitter Type
Submitter Contact Information
Submitter First and Last Name
Submitter Email
Submitter Phone Number
Infrastructure project description and location to the extent known.
Total Funding, including Federal and non-Federal shares.
Total estimated infrastructure expenditures, including all Federal and nonFederal shares (to the extent known).
Is this a waiver for a specific product or category of products?
Listing of Materials, Technical Specifications, and Quantity.
Technical specifications description of the items to be waiver, if applicable
Quantity required
Waiver Type Choose one of the three waiver types listed in this section and
only answer the questions applicable to the chosen waiver type.
Nonavailability Waiver
A description of the due diligence performed by the applicant,
engineer/architect, or contractor, including names and contact information of
the manufacturers, distributors, or suppliers contacted for quotes (minimum 3),
and the responses provide.
If one or more respondent indicated that they could provide a Build America
Buy America (BABA) compliant item, but you are requesting the nonavailability waiver because the lead time to obtain the BABA compliant item is
excessive, indicate below how the difference in lead time between a BABA
compliant and non-compliant item is going to cause the project to miss a
significant milestone or deadline.
Unreasonable Cost Waiver
What is the additional cost of the BABA compliant items, compared to using
iron and steel, manufactured products, and construction materials of nondomestic or unknow origin? Attach documentation of prices for BABA
compliant and non-compliant items for items to be included in the cost
comparison. Attach an additional PDF file if needed.
What is the additional administrative cost for compliance with the BABA
requirements? Attach a certification from the engineer or architect attesting to
the actual or expected additional administrative cost. Attach an additional PDF
file if needed.

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11.2.3 The BABA requirements will be waived for individual items until the total
additional cost of BABA compliance is less than 25 percent of the total project
costs. Which items is the applicant requesting to be waived from the BABA
requirements to reduce costs below the 25 percent cost threshold?
11.3 Public Interest Waiver
12.
Waiver Additional Information
13.
Anticipated Impacts
14.
Certifying Official Name
15.
Certifying Official Signature
16.
Date of Certification
USDA agencies, staff offices and governmentwide agencies need to collect the
following information listed in OMB M-22-11 and additional data elements:
1A.
2A.
3A.
4A.
5A.
6A.
7A.
8A.
9A.
10A.
11A.

Federal awarding agency
Federal financial assistance program listing number
Federal financial assistance program title
Federal awarding agency point of contact
FAIN and Federal awarding agency organizational
Waiver level
Is this a general applicability waiver?
Agency summary and determination
Agency Waiver
Public Comments
Waiver timeline

USDA is requesting to have emergency clearance of the Build America, Buy America
Waiver Request Data Collection available to recipients and subrecipients prior to the 3
months or more required for the normal Paperwork Reduction Act (PRA) clearance
procedures under 5 CFR part 1320 because:
•

This information collection needs to be implemented quickly to avoid having
further delays in existing awards or delays in issuing new awards; and

•

Public harm is reasonably likely to result if normal PRA clearance
procedures are followed. The public harm would be that projects
would be delayed or stopped while USDA waits to have an approved
form for waivers. Much needed IIJA and other awards that have
waivers would be placed on hold until the Build America, Buy
America Waiver Request Data Collection became available and is
collected by USDA.

As indicated this memorandum, USDA is requesting an emergency clearance of the
attached Build America, Buy America Waiver Request Data Collection common form
from OMB as soon as possible. Given the inability to seek public comment in advance of
OMB approval, as part of the emergency notice in the Federal Register, USDA will
simultaneously solicit 60-days of public comment for the regular information collection as
required by 5 CFR 1320.8(d).
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If there are any questions or concerns, please contact Tyson Whitney, Director,
Transparency and Accountability Reporting Division at [email protected] or
(202) 720-8978.
Attachment:
- Build America, Buy America Waiver Request Data Collection

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