e scheduled to take effect on October 23, 2023, it becomes crucial for businesses and agencies involved in infrastructure projects to swiftly adapt their practices and compliance protocols to ensure adherence to these updated regulations.1 James R. Holbein practices in the area of international trade and customs law and has written extensively about digital assets and the potential for digital technologies to reshape supply chains and open new ways to collaborate.Harold Rader Jackson assists companies across a range of industries, including aerospace, medicine and medical devices, oil and gas, electronics, textiles, industrial equipment, logistics and customs brokerage, and other areas.This article builds upon the analysis in our prior article, OMB Proposes Rule to Clarify Buy America Provision for Grants and Agreements, April 5, 2023, found at https://www.braumillerlaw.com/omb-proposes-rule-to-clarify-buy-america-pro/2 OMB, 2 CFR Parts 184 and 200, Guidance for Grants and Agreements, 88 Fed Reg 57750, August 23, 2023. (hereinafter “Final Rule”).3 Public Law 117–58, 135 Stat. 429, 70901–70927, Nov. 15, 2021.4 Public Law 117–58, which includes BABA,5 Final Rule at 57750.6 88 Fed Reg at 57775-57778.7 2 C.F.R. 184.6.8 2 C.F.R. 184.3.9 88 Fed Reg at 57781.10 88 Fed Reg at 57784.11 88 Fed Reg at 57785.12 88 Fed Reg at 57786.

e subject to review by OMB.Next stepsWhile OMB’s Guidance provides additional clarity regarding implementation of the BABA domestic content requirements under federally funded infrastructure projects, it also leaves some issues unaddressed. For example, OMB does not define the term “kit”, but rather leaves federal agencies with discretion on how this concept should be applied in practice when classifying products. It also fails to specify the level of processing that will be required for processing to constitute a “final manufacturing process.” While federal procurement contractors have long experience with Buy American Act and certain agency-specific Buy America requirements, expansion of these domestic content restrictions generally into federal financial assistance awards changes the landscape for many recipients of federal grants and cooperative agreements.References1 The BABA applies to federal financial assistance awards, but does not apply to federal procurement contracts.2 See 88 Fed. Reg. 57750 (Aug. 23, 2023). OMB expressly noted that the Guidance is not a rule per the Administrative Procedures Act. However, as is the case with a final rule, applicable regulations will be revised to reflect the final Guidance and OMB will submit it to Congress and to the Comptroller General consistent with rulemaking procedures set forth in 5 U.S.C. 801(a).3 The OMB Guidance uses the term “domestic preferences” throughout in speaking of the domestic content requirements of the BABA. Notably, unlike the domestic “evaluation preferences” applied under the Buy American Act (and implementing FAR clauses under FAR Subpart 25.1), the domestic content standards of the BABA are domestic content restrictions.4 41 U.S.C. §§ 8301-8305.5 See 88 Fed. Reg. 8,377 (Feb. 9, 2023). Although individual agencies such as the U.S. Department of Transportation (DOT) funded projects have subject to domestic content requirements for decades, the BABA program applies to infrastructure projects government-wide, across all agencies.