EPA seeking comments on new BABA guidance

Feb. 20, 2023
The Office of Management and Budget is looking for public feedback on proposed BABA guidance that could alter the way that agencies determine the cost of components for manufactured products.

The U.S. EPA announced that its Office of Management and Budget (OMB) is seeking public comments on Build America, Buy America (BABA) Act guidance.

The OMB is seeking comments for specific sections of the proposal, which includes guidance for determining the cost of components for manufactured products. The proposal also suggests that BABA use a definition of “cost of components” from the Federal Acquisition Regulation (FAR), which is part of a codified set of rules for government operation. For BABA, this definition would help determine the cost of manufactured products using a pre-existing standard.

The definition of “cost of components” in the FAR is as follows:

(1) For components purchased by the contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product or construction material (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or

(2) For components manufactured by the contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product.

EPA says that comments on the proposal are due by March 13, 2023. The proposal and the opportunity to submit comments are available on the Federal Register here.

The proposal specifically asks for public feedback on the following questions:

  1. Cost of components. Should OMB adopt a definition based on the definition provided in the FAR?
  2. Other construction material standards. What, if any, additional construction materials should be included in the proposed guidance? OMB asks specifically about coatings, brick, engineered wood products, and any other construction materials.
  3. Proposed definition of construction materials. Is additional guidance needed on the proposed definition of construction materials?
  4. Definition for “predominantly” iron or steel items. To be consistent with certain existing Buy America and Buy American laws and policies, or for other reasons, should OMB adopt a definition of “predominantly” iron or steel items? OMB is asking specifically about whether to use the term “predominantly” in a way similar to the definition of the term “predominantly of iron or steel or a combination of both” in the FAR. In the FAR, the term means that the cost of the iron and steel content exceeds 50 percent of the total cost of all its components.
  5. How to distinguish between categories of products. Is further guidance needed on how to distinguish between steel or iron products, manufactured products, and construction materials?
  6. Meaning of composite building materials. Should OMB include “composite building materials” as a sub-category of plastic and polymer-based products or as a stand-alone category? Is further guidance needed on the meaning of the term to distinguish it from “plastic and polymer-based products” in general? If additional guidance is needed, how should “composite building materials” be defined?
  7. Fiber optic cables and optical fibers. Is there any reason the standards in section 184.6 of this proposed guidance should be applied differently for optical fibers that include both plastic and polymer-based components and glass components? Is further guidance needed on the meaning of the terms “fiber optic cable” and “optical fibers”?
  8. Standards applicable to optical fiber and optic glass. Section 184.6 of the proposed guidance does not include a stand-alone category for “optic glass,” but does include a stand-alone category for “optical fiber.” OMB asks: Is any additional guidance needed on this topic?
  9. Aggregates. Should OMB exclude raw aggregates (such as stone, sand, or gravel) unless they have been processed into a specific form or shape or combined with other raw materials, such as combining them with cement powder and water to produce precast concrete products? How should OMB treat cement and cementitious materials before they are processed into a specific form and shape?
About the Author

Jeremy Wolfe | Editor, Stormwater Solutions

Jeremy Wolfe is a former Editor for Stormwater Solutions.