September 30, 2022 – The National Telecommunications and Information Administration (NTIA) is seeking public comment on a proposed limited applicability nonavailability waiver that would provide recipients of grants under NTIA’s Middle Mile Grant Program a limited exemption from application of the Infrastructure Act’s “Buy America” provisions as applied to limited classes of manufactured products and construction materials. Comments on NTIA’s proposed waiver are due on or before October 3, 2022, at 11:59 p.m. Eastern Time.

The Build America, Buy America Act, enacted as part of the Infrastructure Investment and Jobs Act, “established a domestic content procurement preference for all Federal financial assistance obligated for infrastructure projects after May 14, 2022.” Its provisions require Federal agencies to ensure that “none of the funds made available for a Federal financial assistance program for infrastructure, including each deficient 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.” The Infrastructure Act provides for exceptions to or waiver of Buy American provisions under certain conditions.

In the notice for public comment, NTIA explains that the proposed waiver will: (1) promote broad participation in the Middle Mile Grant Program, (2) ensure that non-Federal entities and for-profit entities are able to compete for program funding on equal footing (especially in light of the very short application timeframe for the program), (3) ensure that program awardees will have access to the manufactured products and construction materials necessary to fulfill their obligations under the Middle Mile Grant Program, (4) allow funding recipients to continue to provide economic opportunity through innovation and timely deployment of broadband infrastructure, which is recognized to expand job opportunities, and (5) support the timely development of critical domestic public infrastructure.

If NTIA ultimately grants the proposed waiver, it will be effective for all Middle Mile Grant Program awards awarded from March 1, 2023, until March 1, 2024. Grant recipients to whom the proposed waiver would apply would be required to report on their purchases of items from foreign sources. NTIA also would review the waiver within six months of the date on which it is issued to assess whether it remains necessary to the fulfillment of the Commerce Department’s missions and goals and consistent with applicable legal authorities, such as the Infrastructure Investment and Jobs Act, Executive Order 14005, and the Office of Management and Budget (OMB) Memorandum M-22-11.

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