In March, we wrote about how we still were awaiting guidance from the White House about how the Made in America Office’s waiver process would work under President Biden’s January 25, 2021 EO 14005, Ensuring the Future is Made in All of America by All of America’s Workers. This month, the White House released its initial guidance on the new waiver process, identifying four main areas of implementation:
1. Designating Senior Accountable Officials (SAOs): Agencies must designate an SAO for domestic sourcing. The SAO will coordinate with the Made in America director to achieve the policy goals of EO 14005.
2. Agency Reports on Made in America: The heads of each agency are required to submit initial and semi-annual report on the use of Made in America laws. The initial report follows the agency’s initial review and outlines the agency’s implementation and compliance with Made in America laws, use of waivers, and recommendations for fulfillment of EO 14005’s policy objectives. The agencies must also update the reports semiannually.
3. Waiver Review Process: The guidance also requires a standardized set of information to be provided for non-availability and Jones Act waivers.
For non-availability waivers, the following information is required:
- The agency, contracting activity, and program requirements office.
- Nature and/or description of end item or construction material being acquired.
- Market research activities and methods used to identify domestically manufactured items capable of satisfying the requirement, including the timing of the research and conclusions reached on the availability of sources.
- Use of competition.
- Whether the solicitation will or did announce a price preference for domestic end products and construction material.
- Exclusion of source offering a U.S.-made end product for reasons other than price.
- Identify approving authority.
For Jones Act Section 501 Waivers by CFO Act Agencies, the following information is required:
- Nature and/or description of the transportation required by the CFO agency.
- Why the transportation cannot be completed on a Jones Act qualified vessel.
- Why it is in the interest of national defense for the Secretary of DHS to waive the Jones act for the requested transportation.
- Additional information to clarify the need for a waiver.
For Jones Act Section 501 Waivers by non-CFO Act Agencies, the following information is required:
- The entity’s request for waiver.
- Determination by the Maritime Administrator regarding the availability or non-availability of qualified United States flag capacity to meet national defense requirements, pursuant to 46 U.S.C. § 501(b)(1), (3).
- Any actions identified by the Maritime Administrator pursuant to 46 U.S.C. § 501(b)(3)(A) that could be taken to enable United States flag capacity to meet national defense requirements.
- Any recommendations or information provided to the Secretary by other Departments and Agencies regarding the waiver request.
- Any notices that DHS may have made to Congress, pursuant to 46 U.S.C. § 501(b)(3), prior to granting or denying a request.
- Any additional information necessary to understand why the waiver is necessary and consistent with law.
4. Waiver Website: As previously promised in the Biden EO, a waiver website will provide information on all proposed waivers under Made in America Laws to provide transparency.
Although this guidance is far from complete, it does offer a glimpse of what we can expect in the coming months as the waiver process is further developed and implemented. As the Administration collects additional information relating to waivers and reviews the agency’s Made in America reports required under the EO, expect more guidance and perhaps additional requirements in the coming months.