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Biden Administration Issues Additional Guidance On Made In America Waiver Process – Corporate / Commercial Law


United States: Biden administration issues additional guidance on Made in America waiver process

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In March, we wrote about how we were still waiting for advice from the White House on how the Made in America Office waiver process works as part of President Biden’s EO 14005 of January 25, 2021, To ensure that the future is made all over America by all American workers. This month, the White House released its first guidance on the new waiver process, identifying four main areas for implementation:

1. Appointment of responsible senior officials (SAO): Agencies must designate an ODS for national procurement. 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 an initial and semi-annual report on the use of Made in America laws. The initial report follows the agency’s initial review and describes the agency’s implementation and compliance with Made in America laws, the use of exemptions, and recommendations for achieving the policy objectives of the agency. EO 14005. Agencies must also update reports semi-annually.

3. Waiver review process: The guidelines also require that a standardized set of information be provided for non-availability and Jones Act waivers.

For non-availability waivers, the following information is required:

  1. The agency, contracting activity and office of program requirements.
  2. Nature and / or description of the finished product or the purchased construction material.
  3. Market research activities and methods used to identify domestically produced items capable of meeting the requirement, including the timing of the research and conclusions drawn about the availability of sources.
  4. Use of competition.
  5. Whether the solicitation will advertise or advertise a price preference for finished goods and domestic building materials.
  6. Exclusion of the source offering a final product made in the United States for reasons other than price.
  7. Identify the approving authority.

For waivers of Section 501 of the Jones Act by CFO law agencies, the following information is required:

  1. Nature and / or description of the transport requested by the CFO agency.
  2. Why the transport cannot be done on a Jones Act compliant vessel.
  3. Why it is in the interests of national defense for the secretary of DHS to waive Jones law for requested transport.
  4. Additional information to clarify the need for a waiver.

For waivers of Section 501 of the Jones Act by non-CFO agencies, the following information is required:

  1. The entity’s request for exemption.
  2. Maritime administrator’s determination regarding the availability or non-availability of qualified United States flag capability to meet national defense requirements, pursuant to 46 USC § 501 (b) (1), (3).
  3. Any action identified by the Maritime Administrator in accordance with 46 USC § 501 (b) (3) (A) that may be taken to enable the ability of the United States flag to meet national defense requirements.
  4. Any recommendations or information provided to the Secretary by other departments and agencies regarding the waiver request.
  5. Any notice that DHS may have given to Congress, in accordance with 46 USC § 501 (b) (3), before granting or denying a request.
  6. Any additional information necessary to understand why the waiver is necessary and in accordance with the law.

4. Disclaimer website: As previously promised in the Biden EO, a waiver website will provide information on all proposed waivers under Made in America laws to ensure transparency.

While these guidelines are far from complete, they do offer a glimpse of what we can expect in the coming months as the waiver process is developed and implemented. As the administration collects additional information related to exemptions and reviews the agency’s Made in America reports required under the OE, expect more guidance and perhaps additional requirements in the months to come. to come up.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought on your particular situation.

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