Notice2022-11729
Request for Information Relating to the Implementation of the Build America, Buy America Act
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 1, 2022
Issuing agencies
Housing and Urban Development Department
Abstract
This Request for Information (RFI) seeks public input on the implementation of the Build America, Buy America Act ("BABA" or "the Act") as it applies to HUD's Federal Financial Assistance. In this RFI, HUD is seeking input on several topics relating to the potential information collection burden on recipients, including existing mechanisms for demonstrating compliance with the Act's domestic content procurement preference ("Buy America Preference," or "BAP"), potential costs of compliance for recipients and contractors, and the potential impact on projects funded by HUD Federal Financial Assistance.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 105 (Wednesday, June 1, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 105 (Wednesday, June 1, 2022)]
[Notices]
[Pages 33193-33196]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-11729]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-6331-N-03]
Request for Information Relating to the Implementation of the
Build America, Buy America Act
AGENCY: Office of the Secretary, U.S. Department of Housing and Urban
Development (HUD).
ACTION: Notice; request for information.
-----------------------------------------------------------------------
SUMMARY: This Request for Information (RFI) seeks public input on the
implementation of the Build America, Buy America Act (``BABA'' or ``the
Act'') as it applies to HUD's Federal Financial Assistance. In this
RFI, HUD is seeking input on several topics relating to the potential
information collection burden on recipients, including existing
mechanisms for demonstrating compliance with the Act's domestic content
procurement preference (``Buy America Preference,'' or ``BAP''),
potential costs of compliance for recipients and contractors, and the
potential impact on projects funded by HUD Federal Financial
Assistance.
DATES: Comment Due Date: July 1, 2022.
ADDRESSES: Interested persons are invited to provide responses to this
RFI. 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
[[Page 33194]]
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 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, Senior Advisor, Office
of the Secretary, Department of Housing and Urban Development, 451
Seventh Street SW, Room 10226, Washington, DC 20410-5000, at (202) 402-
7082 (this is not a toll-free number. Persons with hearing or speech
impairments may access this number through TTY by calling the toll-free
Federal Relay Service at 800-877-8339. Questions about this document
also be sent to <a href="/cdn-cgi/l/email-protection#793b0c10151d38141c0b101a183b0c0038141c0b101a1839110c1d571e160f"><span class="__cf_email__" data-cfemail="6624130f0a02270b03140f050724131f270b03140f0507260e130248010910">[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 by the Department through a Federal financial assistance
program that provides funding for infrastructure projects may be
obligated unless it has taken steps to ensure that all of 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
A. Initial Report
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 (87 FR 2894). 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. In the report, HUD
erred on the side of over-inclusiveness in accordance with Office of
Management and Budget (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.
---------------------------------------------------------------------------
\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="http://www.whitehouse.gov/wp-content/uploads/2021/12/M-22-08.pdf">www.whitehouse.gov/wp-content/uploads/2021/12/M-22-08.pdf</a>.
---------------------------------------------------------------------------
B. OMB Initial Implementation Guidance
On April 18, 2022, OMB issued guidance to heads of Executive
Departments and Agencies on the application of a BAP in Federal
Financial Assistance programs for infrastructure.\2\ This guidance laid
out the current interpretation of the Act and key terminology, how to
apply the BAP to Federal Financial Assistance programs for
infrastructure, and how agencies should be constructing a transparent
waiver process.
---------------------------------------------------------------------------
\2\ See OMB Memorandum M-22-11, Initial Implementation Guidance
on Application of Buy America Preference in Federal Financial
Assistance Programs for Infrastructure, <a href="http://www.whitehouse.gov/wp-content/uploads/2022/04/M-22-11.pdf">www.whitehouse.gov/wp-content/uploads/2022/04/M-22-11.pdf</a>.
---------------------------------------------------------------------------
The guidance defined ``infrastructure'' to include public
infrastructure projects such as the structures, facilities, and
equipment for, in the United States, roads, highways, and bridges;
public transportation; dams, ports, harbors, and other maritime
facilities; intercity passenger and freight railroads; freight and
intermodal facilities; airports; water systems, including drinking
water and wastewater systems; electrical transmission facilities and
systems; utilities; broadband infrastructure; and buildings and real
property. However, infrastructure should be interpreted broadly, and
agencies should assess whether a project will serve a public function.
``Federal Financial Assistance'' is funds that are appropriated or
otherwise made available and used for infrastructure by a ``non-
Federal'' entity, which includes States, local governments,
territories, Tribes, Tribally Designated Housing Entities, and other
Tribal entities, institutions of higher education, and nonprofit
organizations, but does not include ``for-profit organizations.''
The guidance also clarifies the extent to which disaster, emergency
response, or mitigation expenditures are exempt from the Act's BAP.
Pre- and post-disaster expenditures that are ``made in anticipation of
or response to an event or events that qualify as an `emergency' or
`major disaster' within the meaning of the Stafford Act'' are not
included within the BAP. However, ``[a]wards made to support the
construction or improvement of infrastructure to mitigate the damage
that may be caused by a non-imminent future emergency or disaster'' are
included within the Act's BAP.
[[Page 33195]]
Under the guidance, agencies should consider if an existing
domestic content requirement meets the standards in the Act, as the BAP
applies to a Federal Financial Assistance program for infrastructure
only to the extent that an existing preference does not apply. As a
result, policies and provisions that already meet or exceed the Act's
standards should be preserved, while existing requirements that do not
meet the Act's standards must be brought into compliance with the BAP.
The guidance also clarified that the BAP ``only applies to
articles, materials, and supplies that are consumed in, incorporated
into, or affixed to an infrastructure project,'' and does not apply if
an agency has determined no funds in the project will be used for
infrastructure. The BAP ``does not apply to tools, equipment, and
supplies . . . brought to the construction site and removed at or
before'' completion, nor does it apply to equipment and furnishings
that are not an ``integral part of or permanently affixed to the
structure.'' Furthermore, items should only be classified as (1) iron
or steel, (2) a manufactured product, or (3) a construction material,
and agencies should apply the iron and steel test to items that are
predominantly iron or steel.
The guidance emphasized that Federal agencies are responsible for
processing and approving all waivers, including requests from
recipients for their own projects and on behalf of subrecipients.
Waivers should generally be targeted to specific products and projects
where feasible. Agencies must submit to OMB for coordination when a
waiver is a general applicability waiver but should notify OMB before
posting a proposed waiver for comment. The agency is responsible for
evaluating the proposed waiver to determine its consistency with the
Act, and should attempt to maximize the use of goods, products, and
materials produced in the United States to the greatest extent
possible. Agencies must also develop standard criteria for determining
whether to grant a waiver in each circumstance.
The guidance also provided five examples of potential general
applicability public interest waivers: (1) De minimis, (2) small
grants, (3) minor components, (4) adjustment period, and (5)
international trade obligations. These categories are not exclusive,
and other public interest waivers may be appropriate. Before a public
interest waiver is granted, agencies must assess if a significant
portion of any cost advantage of a foreign-sourced product is the
result of dumped or injuriously subsidized materials and will integrate
any findings from the assessment into the waiver.
The guidance provided a list of information that should be included
within each waiver, including the recipient's name and identifier, the
funding amount, total cost of infrastructure expenditures, a
certification that the Federal official or recipient made a good faith
effort to solicit bids for domestic products that fall within the BAP,
and a statement justifying the waiver.
OMB also provided initial, nonbinding guidance on the definition of
``all manufacturing processes'' for construction materials. OMB's
guidance clarified the distinction between manufactured product and
construction materials, stating that if two of the materials identified
by the Act are combined with a third material through a manufacturing
process, the product should be treated as manufactured products. For
construction materials, agencies should consider ``all manufacturing
processes'' to include at least the ``final manufacturing process and
the immediately preceding manufacturing stage for the construction
material. OMB is seeking additional feedback on this guidance.
Finally, OMB provided a sample award term that would ensure the use
of American iron, steel, manufactured products, and construction
materials for infrastructure projects complies with the Act's BAP. This
sample award term incorporates key definitions and outlines the
necessary steps to ensure compliance with the Act. The sample award
term includes additional information about the waiver process and could
be altered to reflect agency specific procedures.
C. HUD's Public Interest Waivers of the Act's BAP Until the Completion
of a Paperwork Reduction Act Package and Tribal Consultation Process
On April 29, 2022 (87 FR 26219), HUD proposed a general
applicability waiver of the BAP to HUD's Federal Financial Assistance
awards to provide the Department with sufficient time to comply with
the requirements of the Paperwork Reduction Act (PRA). HUD outlined the
need to impose additional information collection requirements on
recipients of HUD Federal Financial Assistance to ensure full
compliance with the BAP. HUD stated that recipients of Federal
Financial Assistance from HUD are unfamiliar with the BAP and
additional information collection requirements, as HUD's programs have
not previously been subject to a similar Buy American preference. As a
result, HUD found that the proposed general applicability waiver of the
BAP until HUD had the opportunity to fully review public comments on
how to effectively reduce the burden on the public arising from
information collection necessary to implement the Act would be in the
public interest.
In addition, on April 29, 2022 (87 FR 26221), HUD proposed a
general applicability waiver of the BAP to HUD's Federal Financial
Assistance awards for Tribes, Tribally Designated Housing Entities
(TDHEs), and other Tribal Entities to provide the Department with
sufficient time to comply with HUD's Tribal consultation process. HUD's
Tribal Government-to-Government Consultation Policy \3\ was adopted in
compliance with Executive Order 13175, ``Consultation with Indian
Tribal Governments,'' and outlines the internal procedures and
principles HUD must follow when communicating and coordinating on HUD
programs and activities that affect Native American Tribes. Given that
the BAP is new to HUD's Federal Financial Assistance directed to
Tribes, TDHEs, and other Tribal Entities and the potential impact of
the BAP on Tribal recipients, HUD found a general applicability waiver
was in the public interest to ensure HUD has sufficient time to
complete the Tribal consultation process in recognition of Tribe's
right to self-government and inform a tailored implementation for
Tribal recipients.
---------------------------------------------------------------------------
\3\ <a href="http://www.hud.gov/program_offices/public_indian_housing/ih/regs/govtogov_tcp">www.hud.gov/program_offices/public_indian_housing/ih/regs/govtogov_tcp</a>. See also 81 FR 40893.
---------------------------------------------------------------------------
More information about HUD's proposed waivers is available here:
<a href="http://www.hud.gov/program_offices/general_counsel/BABA">www.hud.gov/program_offices/general_counsel/BABA</a>.
III. Request for Information
HUD is requesting input from interested parties on the potential
documentation and information collection necessary to estimate the
information collection burden and assist HUD in the development of the
PRA package. As discussed above and in HUD's prior notices regarding
the implementation of the Act, because the BAP is new to HUD's programs
and Federal Financial Assistance, HUD currently does not have
sufficient data about the compliance and monitoring burden on
recipients required to implement the BAP. As a result, input is
necessary to create a meaningful estimate of the information collection
burden in compliance with the PRA.
1. What HUD Federal Financial Assistance is used to fund
infrastructure
[[Page 33196]]
as defined under the Build America, Buy America Act? Specifically, HUD
is seeking input from recipients on what forms of HUD's Federal
Financial Assistance are used to fund infrastructure projects in those
programs identified in HUD's report to Congress and OMB on January 19,
2022 (87 FR 2894) or in any other program through which HUD's Federal
Financial Assistance may be used to fund infrastructure projects.
2. How can HUD document what projects serve a ``public function,''
thus qualifying as infrastructure under OMB's guidance and falling
within the scope of the Act? When determining if a program has
infrastructure expenditures, OMB guidance indicates that Federal
agencies should interpret the term ``infrastructure'' broadly and
consider the definition provided as illustrative and not exhaustive.
Agencies are advised to consider whether the project will serve a
public function, including whether the project is publicly owned and
operated, privately operated on behalf of the public, or is a place of
public accommodation, as opposed to a project that is privately owned
and not open to the public. Projects with the former qualities have
greater indicia of infrastructure, while projects with the latter
quality have fewer. How should HUD consider infrastructure projects
more broadly? How can HUD determine if the ultimate recipient of the
funding is a covered non-Federal entity?
3. Are the entities utilizing Federal Financial Assistance to fund
infrastructure doing so independently or in partnership with other
entities? If used in partnership with other entities, how often are
these private entities or other individuals that would not be covered
by the definition of non-federal entities under 2 CFR 200.1?
4. What activities are undertaken by recipients of HUD Federal
Financial Assistance that fall within the Act's BAP? To the extent that
these infrastructure projects are disaster-related, can the projects be
clearly defined as undertaken in response to either (1) non-imminent
future emergency or disaster mitigation/preparedness or (2) disaster or
emergency response/imminent threats? How often would projects be
designed to address both long term and imminent threats? How often
would projects be designed to address current recovery needs along with
future long term mitigation needs? What portions of infrastructure
projects involve the use of iron, steel, manufactured products, or
construction materials? How do recipients currently differentiate
between infrastructure spending and non-infrastructure spending, such
as administrative costs? What types of mitigation activities are
conducted utilizing HUD Federal Financial Assistance that are not
related to an imminent threat of a future emergency or disaster? How,
if at all, will activities be limited such as funding fewer projects?
5. How do recipients currently determine sourcing for materials?
Are there existing mechanisms to locate American made iron, steel,
manufactured products, or construction materials? Furthermore, how do
recipients currently track contractor sourcing? How often are materials
recycled from other products such that the origin of such materials may
be unknown?
6. Are recipients currently subjected to Buy American requirements
from other Federal, state, local, or Tribal entities? If yes, are there
any existing de minimus thresholds exceptions in place and what are
those exceptions? If yes, how have recipients ensured compliance with
these preferences? What steps have Federal, state, local, or Tribal
entities taken to ensure compliance? What type of contractual language
has been utilized to ensure compliance? If contractual language has
been utilized to ensure compliance with a Buy American requirement,
when was it first added? Is the suggested language in Appendix I of
OMB's ``Memorandum for Heads of Executive Departments and Agencies''
\4\ issued April 18, 2022, consistent with other Buy American language
in award terms? Are there ways to improve this suggested award language
for HUD's Federal Financial Assistance programs? What is the burden and
impact, either based in prior experience or as an estimate based on
OMB's suggested language, associated with inserting Buy American
language into contracts for infrastructure projects?
---------------------------------------------------------------------------
\4\ <a href="http://www.whitehouse.gov/wp-content/uploads/2022/04/M-22-11.pdf">www.whitehouse.gov/wp-content/uploads/2022/04/M-22-11.pdf</a>.
---------------------------------------------------------------------------
7. Are there any plans in the iron, steel, manufactured products,
or construction materials industries to provide documentation regarding
materials' compliance with BABA? Are there existing forms of
documentation that would demonstrate BABA compliance? How, if at all,
will BABA compliance impact energy efficiency efforts pursuant to
Executive Order 14008?
8. What are contractor's administrative costs associated with
complying with BABA? What forms of maintenance and guarantee costs will
be necessary to confirm compliance? Will there be any construction
timeline delays associated with BABA compliance? Is there a need for
standard contractual provisions to deal with potential delays arising
from BABA compliance? If there is a need for a product specific waiver,
when would contractors know about the need?
9. What, if any, are the specific concerns, either from recipients
or contractors, about a potential waiver process? Considering agency
requirements associated with waiver processing, what would be the ideal
and realistic timeline for waiver processing that would minimize impact
on affected projects? What documentation is currently available, either
from contractors or recipients, to demonstrate the need for a waiver in
line with the requirements in section 70914 of the Act?
10. Where applicable, how will BABA requirements affect relocation
plans, transfer procedures, and/or reasonable accommodation or
modifications procedures for existing occupants? What if any changes
are required for your agency's Administrative Plan or Admissions and
Continued Occupancy Plan? Are there any other potential impacts on
current residents of projects supported by HUD Federal Financial
Assistance?
11. What situations would require expedited or general waivers? How
can HUD develop its waiver criteria in a way that identifies these
expedited or general waivers? Are there situations where the cost of
the materials would always meet the standards for waivers established
under Section 70914 of the Act, whether a cost, public interest, or
nonavailability waiver?
12. How, if at all, would the Act's BAP affect contractor's
willingness to accept infrastructure contracts subject to BABA's
requirements? How would contractors need to build in additional costs
when bidding for infrastructure contracts?
Marcia L. Fudge,
Secretary.
[FR Doc. 2022-11729 Filed 5-31-22; 8:45 am]
BILLING CODE 4210-67-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on June 1, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.