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The effective date of the amendments to 2 CFR part 176 (the interim final guidance) is March 25, 2010.
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AGENCY:
Office of Federal Financial Management, Office of Management and Budget (OMB).
ACTION:
Amendments of interim final guidance.
SUMMARY:
The Office of Federal Financial Management (OFFM) is amending certain sections of the interim final guidance at 2 CFR part 176 that pertain to international agreements. These amendments reflect changes with respect to U.S. international obligations since the publication of the interim final guidance. Public comments received in response to the initial publication of the interim final guidance will be addressed when the guidance is finalized.
DATES:
The effective date of the amendments to 2 CFR part 176 (the interim final guidance) is March 25, 2010.
FOR FURTHER INFORMATION CONTACT:
Marguerite Pridgen, Office of Federal Financial Management, Office of Management and Budget, e-mail:
Marguerite_E._Pridgen@omb.eop.gov.
SUPPLEMENTARY INFORMATION:
The Office of Federal Financial Management (OFFM) is amending four areas of the interim final guidance at 2 CFR part 176 that deal with international agreements. First, it makes a technical correction to section 176.90(a). Second, it changes the threshold that applies to international agreements from $7,430,000 to 7,804,000, based on a determination made by the United States Trade Representative (74 FR 68907, Dec. 29, 2009). Third, it adds Chinese Taipei (Taiwan) as a Party to the WTO Government Procurement Agreement. Fourth, it adds the Agreement between Canada and the United States of America on Government Procurement, which was signed on February 12, 2010 and enters into force on February 16, 2010, to the list of international agreements in section 176.90(b). Consequential amendments are also made to the
Appendix to Subpart B of Part 176—U.S. States, Other Sub-Federal Entities, and Other Entities Subject to U.S. Obligations under International Agreements.
The amended Appendix will be posted on the Web site of the Office of the United States Trade Representative at:
http://www.ustr.gov/trade-topics/government-procurement.
Any subsequent revisions of the Appendix will be made by the Office of the United States Trade Representative and posted on its Web site.
Debra Bond,
Deputy Controller.
For the reasons set forth above, the Office of Management and Budget amends 2 CFR part 176 in Subtitle A, Chapter I, as set forth below:
PART 176—AWARD TERMS FOR ASSISTANCE AGREEMENTS THAT INCLUDE FUNDS UNDER THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009, PUBLIC LAW 111-5
1. The authority citation for part 176 continues to read as follows:
Authority: American Recovery and Reinvestment Act of 2009, Public Law 111-5; Federal Funding Accountability and Transparency Act of 2006, (Pub. L. 109-282), as amended.
Subpart B—Buy American Requirement Under Section 1605 of the American Recovery and Reinvestment Act of 2009
2. In § 176.90, revise the section heading, the introductory text, paragraphs (a), (b) introductory text, (b)(1), and (b)(3), and add paragraph (b)(4), to read as follows:
Acquisitions covered under international agreements.
Section 1605(d) of the Recovery Act provides that the Buy American requirement in section 1605 shall be applied in a manner consistent with U.S. obligations under international agreements.
(a) The Buy American requirement set out in § 176.70 shall not be applied where the iron, steel, or manufactured goods used in the project are from a Party to an international agreement, listed in paragraph (b) of this section, and the recipient is required under an international agreement, described in the appendix to this subpart, to treat the goods and services of that Party the same as domestic goods and services. As of January 1, 2010, this obligation shall only apply to projects with an estimated value of $7,804,000 or more and projects that are not specifically excluded from the application of those agreements.
(b) The international agreements that obligate recipients that are covered under an international agreement to treat the goods and services of a Party the same as domestic goods and services and the respective Parties to the agreements are:
(1) The World Trade Organization Government Procurement Agreement (Aruba, Austria, Belgium, Bulgaria, Canada, Chinese Taipei (Taiwan), Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and United Kingdom);
* * * * *
(3) United States-European Communities Exchange of Letters (May 15, 1995): Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, and United Kingdom; and
(4) Agreement between the Government of Canada and the Government of the United States of America on Government Procurement.
3. In § 176.160, revise the definition of “Designated country” in paragraph (a), and paragraph (b)(1)(ii), to read as follows:
Award term—Required Use of American Iron, Steel, and Manufactured Goods (covered under International Agreements)—Section 1605 of the American Recovery and Reinvestment Act of 2009.
* * * * *
(a) * * *
Designated country
—
(1) A World Trade Organization Government Procurement Agreement country (Aruba, Austria, Belgium, Bulgaria, Canada, Chinese Taipei (Taiwan), Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and United Kingdom;
(2) A Free Trade Agreement (FTA) country (Australia, Bahrain, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Israel, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore);
(3) A United States-European Communities Exchange of Letters (May 15, 1995) country: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, and United Kingdom; or
(4) An Agreement between Canada and the United States of America on Government Procurement country (Canada).
* * * * *
(b) * * *
(1) * * *
(ii) Section 1605(d), which requires application of the Buy American requirement in a manner consistent with U.S. obligations under international agreements. The restrictions of section 1605 of the Recovery Act do not apply to designated country iron, steel, and/or manufactured goods. The Buy American requirement in section 1605 shall not be applied where the iron, steel or manufactured goods used in the project are from a Party to an international agreement that obligates the recipient to treat the goods and services of that Party the same as domestic goods and services. As of January 1, 2010, this obligation shall only apply to projects with an estimated value of $7,804,000 or more.
* * * * *
4. Revise Appendix to Subpart B to read as follows:
Appendix to Subpart B of 2 CFR part 176—U.S. States, Other Sub-Federal Entities, and Other Entities Subject to U.S. Obligations Under International Agreements (as of February 16, 2010)
States
Entities covered
Exclusions
Relevant international agreements
Arizona
Executive branch agencies
—WTO GPA.
—U.S.-Chile FTA.
—U.S.-Singapore FTA.
Arkansas
Executive branch agencies, including universities but excluding the Office of Fish and Game
—Department of Administrative and Financial Services
—Bureau of General Services (covering State government agencies and school construction)
— Department of Transportation.
Construction-grade steel (including requirements on subcontracts); motor vehicles; coal
—Office of the Treasury
—Department of the Environment.
—Department of General Services.
—Department of Housing and Community Development.
—Department of Human Resources.
—Department of Licensing and Regulation.
—Department of Natural Resources.
—Department of Public Safety and Correctional Services.
—Department of Personnel.
—Department of Transportation.
Construction-grade steel (including requirements on subcontracts); motor vehicles; coal
—State agencies
—State university system.
—Public authorities and public benefit corporations, with the exception of those entities with multi-State mandates.
Construction-grade steel (including requirements on subcontracts); motor vehicles; coal; transit cars, buses and related equipment
—U.S.-EC Exchange of Letters (applies to EC Member States and only where the State considers out-of-State suppliers).
Wisconsin
Executive branch agencies, including:
—Department of Administration.
—State Correctional Institutions.
—Department of Development.
—Educational Communications Board.
—Department of Employment Relations.
—State Historical Society.
—Department of Health and Social Services.
—Insurance Commissioner.
—Department of Justice.
—Lottery Board.
—Department of Natural Resources.
—Administration for Public Instruction.
—Racing Board.
—Department of Revenue.
—State Fair Park Board.
—Department of Transportation.
—State University System.
—WTO GPA.
—U.S.-Chile FTA.
—U.S.-Singapore FTA.
Wyoming
—Procurement Services Division
—Wyoming Department of Transportation.
—University of Wyoming.
Construction-grade steel (including requirements on subcontracts); motor vehicles; coal
Rural Utilities Service (waiver of Buy American restriction on financing for telecommunications projects)
Any recipient
—NAFTA.
—U.S.-Israel FTA.
U.S. Department of Agriculture, Rural Utilities Services,
Water and Waste Disposal Programs
(exclusion of Canadian iron, steel and manufactured products from domestic purchasing restriction in Section 1605 of American Recovery and Reinvestment Act of 2009)
Any recipient
U.S.-Canada Agreement.
U.S. Department of Agriculture, Rural Housing Service,
Community Facilities Program
(exclusion of Canadian iron, steel and manufactured products from domestic purchasing restriction in Section 1605 of American Recovery and Reinvestment Act of 2009)
Any recipient
U.S.-Canada Agreement.
U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy,
Energy Efficiency and Conservation Block Grants
(exclusion of Canadian iron, steel and manufactured products from domestic purchasing restriction in Section 1605 of American Recovery and Reinvestment Act of 2009)
Any recipient
U.S.-Canada Agreement.
U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy,
State Energy Program
(exclusion of Canadian iron, steel and manufactured products from domestic purchasing restriction in Section 1605 of American Recovery and Reinvestment Act of 2009 (ARRA)
Any recipient
U.S.-Canada Agreement.
( printed page 14330)
U.S. Department of Housing and Urban Development, Office of Community Planning and Development,
Community Development Block Grants Recovery
(CDBG-R) (exclusion of Canadian iron, steel and manufactured products from domestic purchasing restriction in Section 1605 of American Recovery and Reinvestment Act of 2009)
Any recipient
U.S.-Canada Agreement.
U.S. Department of Housing and Urban Development, Office of Public and Indian Housing,
Public Housing Capital Fund
(exclusion of Canadian iron, steel and manufactured products from domestic purchasing restriction in Section 1605 of American Recovery and Reinvestment Act of 2009)
Any recipient
U.S.-Canada Agreement.
U.S. Environmental Protection
Clean Water and Drinking Water State Revolving Funds
Agency for projects funded by reallocated ARRA funds where the contracts are signed after February 17, 2010 (exclusion of Canadian iron, steel and manufactured products from domestic purchasing restriction in Section 1605 of American Recovery and Reinvestment Act of 2009)
Any recipient
U.S.-Canada Agreement.
General Exceptions:
The following restrictions and exceptions are excluded from U.S. obligations under international agreements:
1. The restrictions attached to Federal funds to States for mass transit and highway projects.
2. Dredging.
The World Trade Organization Government Procurement Agreement (WTO GPA) Parties:
Aruba, Austria, Belgium, Bulgaria, Canada, Chinese Taipei (Taiwan), Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and United Kingdom.
The Free Trade Agreements and the respective Parties to the agreements are:
(1) Dominican Republic-Central America-United States Free Trade Agreement (DR-CAFTA): Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, and Nicaragua;
(2) North American Free Trade Agreement (NAFTA): Canada and Mexico;
(3) United States-Australia Free Trade Agreement (U.S.-Australia FTA);
(4) United States-Bahrain Free Trade Agreement (U.S.-Bahrain FTA);
(5) United States-Chile Free Trade Agreement (U.S.-Chile FTA);
(6) United States-Israel Free Trade Agreement (U.S.-Israel FTA);
(7) United States-Morocco Free Trade Agreement (U.S.-Morocco FTA);
(8) United States-Oman Free Trade Agreement (U.S.-Oman FTA);
(9) United States-Peru Trade Promotion Agreement (U.S.-Peru TPA); and
(10) United States-Singapore Free Trade Agreement (U.S.-Singapore FTA).
United States-European Communities Exchange of Letters (May 30, 1995) (U.S.-EC Exchange of Letters) applies to EC Member States: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, and United Kingdom.
Agreement between the Government of Canada and the Government of the United States of America on Government Procurement (Feb. 10, 2010) (U.S.-Canada Agreement):
Applies only to Canada.