Notice2022-09513
General Applicability Waiver of Build America, Buy America Provisions as Applied to Recipients of HUD Federal Financial Assistance
Primary source
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Published
May 3, 2022
Effective
May 14, 2022
Issuing agencies
Housing and Urban Development Department
Abstract
In accordance with the Build America, Buy America Act (the Act) this notice advises that HUD is proposing a general applicability waiver for six months to the Buy America Domestic Content Procurement Preference ("Buy America Preference," or "BAP") to provide the agency with sufficient time to solicit information from the public relating to the agency's potential information collection needs and the associated burdens that would be placed on recipients arising from compliance and monitoring with the BAP in connection with Federal Financial Assistance awards made by HUD. In accordance with the Act, HUD has found that this proposed general applicability waiver is in the public interest as HUD must complete the required public comment process pursuant to the Paperwork Reduction Act to establish an approved collection for the information identified as necessary to establish compliance with the BAP.
Full Text
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<title>Federal Register, Volume 87 Issue 85 (Tuesday, May 3, 2022)</title>
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[Federal Register Volume 87, Number 85 (Tuesday, May 3, 2022)]
[Notices]
[Pages 26219-26221]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-09513]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-6331-N-01]
General Applicability Waiver of Build America, Buy America
Provisions as Applied to Recipients of HUD Federal Financial Assistance
AGENCY: Office of the Secretary, U.S. Department of Housing and Urban
Development (HUD).
ACTION: Notice.
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SUMMARY: In accordance with the Build America, Buy America Act (the
Act) this notice advises that HUD is proposing a general applicability
waiver for six months to the Buy America Domestic Content Procurement
Preference (``Buy America Preference,'' or ``BAP'') to provide the
agency with sufficient time to solicit information from the public
relating to the agency's potential information collection needs and the
associated burdens that would be placed on recipients arising from
compliance and monitoring with the BAP in connection with Federal
Financial Assistance awards made by HUD. In accordance with the Act,
HUD has found that this proposed general applicability waiver is in the
public interest as HUD must complete the required public comment
process pursuant to the Paperwork Reduction Act to establish an
approved collection for the information identified as necessary to
establish compliance with the BAP.
DATES: Comments on the proposed waiver set out in this document are due
on or before May 14, 2022. This proposed waiver is effective for six
months after May 14, 2022, unless, after reviewing any comments, HUD
publishes a subsequent notice in the Federal Register explaining any
changes to its determination to issue the waiver.
ADDRESSES: Interested persons are invited to submit comments on this
proposed general applicability waiver. Copies of all comments submitted
are available for inspection and downloading at <a href="http://www.regulations.gov">www.regulations.gov</a>. To
receive consideration as public comments, comments must be submitted
through one of two methods, specified below. All submissions must refer
to the above docket number and title.
1. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
<a href="http://www.regulations.gov">www.regulations.gov</a>. HUD strongly encourages commenters to submit
comments electronically. Electronic submission of comments allows the
commenter maximum time to prepare and submit a comment, ensures timely
receipt by HUD, and enables HUD to make them immediately available to
the public. Comments submitted electronically through the
<a href="http://www.regulations.gov">www.regulations.gov</a> website can be viewed by other commenters and
interested members of the public. Commenters should follow the
instructions provided on that site to submit comments electronically.
2. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 7th Street SW, Room 10276,
Washington, DC 20410-0500.
No Facsimile Comments. Facsimile (FAX) comments will not be
accepted.
Public Inspection of Comments. All properly submitted comments and
communications submitted to HUD will be available for public inspection
and copying between 8:00 a.m. and 5:00 p.m. weekdays at the above
address. Due to security measures at the HUD Headquarters building, an
advance appointment to review the submissions must be scheduled by
calling the
[[Page 26220]]
Regulations Division at (202) 708-3055 (this is not a toll-free
number). Individuals with speech or hearing impairments may access this
number via TTY by calling the Federal Information Relay Service at
(800) 877-8339 (this is a toll-free number). Copies of all submissions
are available for inspection and downloading at <a href="http://www.regulations.gov">www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Joseph Carlile, Department of Housing
and Urban Development, 451 Seventh Street SW, Room 10226, Washington,
DC 20410-5000, at (202) 402-7082. HUD encourages submission of
questions about this document be sent to
<a href="/cdn-cgi/l/email-protection#7e3c0b17121a3f131b0c171d1f3c0b073f131b0c171d1f3e160b1a50191108"><span class="__cf_email__" data-cfemail="befccbd7d2daffd3dbccd7dddffccbc7ffd3dbccd7dddffed6cbda90d9d1c8">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Build America, Buy America
The Build America, Buy America Act (the Act) was enacted on
November 15, 2021, as part of the Infrastructure Investment and Jobs
Act (IIJA). Public Law 117-58. The Act establishes a domestic content
procurement preference, the BAP, for Federal infrastructure programs.
Section 70914(a) of the Act establishes that no later than 180 days
after the date of enactment, HUD must ensure that none of the funds
made available for infrastructure projects may be obligated by the
Department unless it has taken steps to ensure that the iron, steel,
manufactured products, and construction materials used in a project are
produced in the United States. In section 70912, the Act further
defines a project to include ``the construction, alteration,
maintenance, or repair of infrastructure in the United States'' and
includes within the definition of infrastructure those items
traditionally included along with buildings and real property.
II. HUD's Progress in Implementation of the Act
Since the enactment of the Act, HUD has worked diligently to
implement the BAP. Consistent with the requirements of section 70913 of
the Act, HUD has produced a report that identifies and evaluates all of
HUD's Federal Financial Assistance programs with potentially eligible
uses of funds that include infrastructure as defined by the Act to
determine which programs would be in compliance with the BAP and which
would be considered inconsistent with section 70914 of the Act and thus
``deficient'' as defined by section 70913(c) of the Act. The report was
submitted to Congress and the Office of Management and Budget (OMB) and
published in the Federal Register within 60 days after the date of
enactment of the Act, on January 19, 2022. Specifically, HUD published
the required report in a notice entitled ``Identification of Federal
Financial Assistance Infrastructure Programs Subject to the Build
America, Buy America Provisions of the Infrastructure Investment and
Jobs Act'' in compliance with section 70913. 87 FR 2894. In the report,
HUD erred on the side of over-inclusiveness in accordance with OMB
guidance,\1\ finding that none of HUD's discretionary funding programs
reviewed to date fully meet the BAP requirements outlined in section
70914 of the Act and are considered ``deficient'' under the definition
in section 70913(c). Since issuing the report, HUD has held regular
meetings with Departmental offices and consulted administrative and
economic data to plan to implement the Act.
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\1\ See OMB Memorandum M-22-08, Identification of Federal
Financial Assistance Infrastructure Programs Subject to the Build
America, Buy America Provisions of the Infrastructure Investment and
Jobs Act, <a href="https://www.whitehouse.gov/wp-content/uploads/2021/12/M-22-08.pdf">https://www.whitehouse.gov/wp-content/uploads/2021/12/M-22-08.pdf</a>.
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III. Waivers
Under section 70914(b), HUD has authority to waive the application
of a domestic content procurement preference when (1) application of
the preference would be contrary to the public interest, (2) the
materials and products subject to the preference are not produced in
the United States at a sufficient and reasonably available quantity or
satisfactory quality, or (3) inclusion of domestically produced
materials and products would increase the cost of the overall project
by more than 25 percent. Section 70914(c) provides that a waiver under
70914(b) must be published by the agency with a detailed written
explanation for the proposed determination and provide a public comment
period of not less than 15 days.
Information on this waiver may be found at the web page at this
link: <a href="https://www.hud.gov/program_offices/general_counsel/BABA">https://www.hud.gov/program_offices/general_counsel/BABA</a>.
IV. Public Interest in a General Applicability Waiver of Buy America
Provisions
In this notice, HUD is seeking comment on a proposed general
applicability waiver of the BAP to HUD's Federal Financial Assistance
awards to provide the Department with sufficient time to properly
determine what information collections will be necessary for it to
ensure compliance with the BAP as required by the Act, including
completion of the processes for solicitation of public comment pursuant
to the Paperwork Reduction Act (PRA) and receipt of approval for the
information collection from OMB. In fiscal year 2022, HUD grantees will
receive more than $15 billion through the Department's programs where
infrastructure is an eligible activity, and may be subject to the BAP.
HUD believes that full compliance with the BAP will create ongoing
demand for domestically produced products and deepen domestic supply
chains. HUD anticipates that in order to ensure full compliance with
the BAP, it will need to impose additional information collection
requirements on recipients of Federal financial assistance from HUD.
Specifically, HUD expects such recipients to face additional paperwork
burdens in complying with the BAP and in submitting requests for
product or project specific waivers of the BAP.
As HUD's previous Federal Register Notice advised, many of the
Department's programs may be subject to the BAP and have previously not
required compliance with similar Buy American preferences. Because the
potential application of BAP mandated by the Act is new to the majority
of HUD's programs and Federal Financial Assistance, HUD does not have a
full understanding of the impact on HUD's programs and Federal
Financial Assistance that will be subject to the Act's provisions, nor
does it have adequate information concerning the types of information
necessary to demonstrate compliance with the BAP or to seek product- or
project-specific waivers under the Act to readily provide the public
with an opportunity to evaluate the burdens associated with the
information to be collected. As a result, the Department is not yet
equipped to provide recipients of Federal Financial Assistance from HUD
with the opportunity to fully evaluate and comment on the proposed
information to be collected as would be required under the PRA.
Because of the significance and wide scope of the new paperwork
burdens expected to be placed upon the public as a result of the
implementation of the BAP, HUD would like to take time to first solicit
and then fully consider information from the public about the types of
information that could be necessary to either request a waiver or
demonstrate compliance with the BAP before beginning the process of
soliciting and considering public comment in accordance with the PRA.
HUD believes that the participation of the public in this important
process is key to the successful implementation of the BAP across its
Federal Financial
[[Page 26221]]
Assistance programs funding infrastructure projects. Therefore, HUD has
determined that it would be contrary to the public's interest to apply
the BAP to Federal Financial Assistance obligated by HUD prior to
completion of these processes. HUD is hereby proposing to waive the
application of the BAP to its Federal Financial Assistance funds
obligated for the duration of this waiver to allow for the completion
of the processes as described and the receipt of approval from OMB for
the appropriate information collections.
During the proposed waiver period, HUD expects that implementing
partners will take rapid action to prepare for compliance with the new
requirements, including, for example:
1. Establishing certification processes for grantees and sub-
grantees to determine Buy America compliance;
2. Ensuring contractors, subcontractors, and suppliers are prepared
to certify compliance with Buy America requirements, and provide all
relevant information, including contract provisions prescribing Buy
America requirements;
3. Establishing appropriate diligence by grantees and other
relevant agencies, including audits and reviews as appropriate;
4. Providing further data and information to HUD on the domestic
availability of covered materials, including the extent to which
compliant and non-compliant goods are used during the waiver period,
which can be used to help provide market insights.
During the proposed waiver period, HUD will also work to prepare
for implementation of new Made in America requirements by:
1. Assessing existing Federal financial assistance processes to see
where Made in America processes can be most efficiently added and
aligned;
2. Building new Made in America requirements into forthcoming
Notice of Funding Opportunities, loan programs, and other resources
provided by the Department, as appropriate;
3. Reviewing existing enforcement processes, including stewardship
and oversight agreements with grantees, risk-based reviews, and
compliance assessment program reviews to ensure we are ready to enforce
Made in America standards.
4. Reviewing data, information, and comments provided by grantees,
industry, and other partners to further assess opportunities,
challenges, and the availability of domestically-sourced construction
materials.
5. Training HUD staff and adopting best practices based on
interagency work.
By the end of the proposed waiver period, the Department expects
grantees, industry, and other partners to be ready to implement Made in
America standards, consistent with the Act and interpreting guidance
and standards. To the extent appropriate based on information gathered
during the proposed waiver period, the Department will consider
shortening the period of the waiver overall, or for certain categories
of products, to rapidly encourage domestic sourcing. And, to the extent
grantees, industry, or other partners seek future project-specific or
broader waivers beyond this temporary waiver, they should be expected
to provide rigorous justification of the lack of domestic
availability--not only the difficulty of complying and the need for an
adjustment period.
V. Assessment of Cost Advantage of a Foreign-Sourced Product
Under OMB Memorandum M-22-11, ``Memorandum for Heads of Executive
Departments and Agencies,'' published on April 18, 2022, agencies are
expected to assess ``whether a significant portion of any cost
advantage of a foreign-sourced product is the result of the use of
dumped steel, iron, or manufactured products or the use of injuriously
subsidized steel, iron, or manufactured products'' as appropriate
before granting a public interest waiver. HUD's analysis has concluded
that this assessment is not applicable to this waiver, as this waiver
is not based in the cost of foreign-sourced products. HUD will perform
additional market research during the duration of the waiver to better
understand the market to limit the use of waivers caused by dumping of
foreign-sourced products.
VI. Limited Duration of the Waiver
HUD remains committed to the successful implementation of the
important BAP across its programs providing covered Federal Financial
Assistance for infrastructure projects and will move swiftly towards
completion of the processes outlined in this notice. This waiver is
effective as of May 14, 2022, and will remain in effect for all Federal
Financial Assistance for infrastructure projects for six months, or
until HUD publishes a notice extending the waiver or a final notice
confirming the completion of the PRA process described.
VII. Solicitation of Comments on the Waiver
As required under Section 70914 of the Act, HUD is soliciting
comment from the public on the waiver. In particular, HUD invites
comments on the length, purpose, and scope of the waiver to allow HUD
to make an informed final determination on this waiver. Please refer to
the DATES and ADDRESSES sections of this notice for information on
submission of comments.
Marcia L. Fudge,
Secretary.
[FR Doc. 2022-09513 Filed 4-29-22; 11:15 am]
BILLING CODE 4210-67-P
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