Notice2024-02900
Request for Information Regarding Iron, Steel, Construction Materials, and Manufactured Products Used in Housing Programs Pursuant to the Build America, Buy America Act
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Published
February 13, 2024
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 (FFA) provided in support of the construction, alteration, maintenance, and repair of housing infrastructure projects in the United States. The purpose of this RFI is to improve HUD's understanding of the current state of the domestic market for products required in housing infrastructure projects. HUD is especially interested in comments detailing domestic materials sourcing, market readiness, other product supply considerations, and whether specific housing products or their components are manufactured in the United States.
Full Text
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<title>Federal Register, Volume 89 Issue 30 (Tuesday, February 13, 2024)</title>
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[Federal Register Volume 89, Number 30 (Tuesday, February 13, 2024)]
[Notices]
[Pages 10090-10094]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-02900]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-6433-N-01]
Request for Information Regarding Iron, Steel, Construction
Materials, and Manufactured Products Used in Housing Programs Pursuant
to the Build America, Buy America Act
AGENCY: Office of the Secretary, Department of Housing and Urban
Development (HUD).
ACTION: Request for information.
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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 (FFA) provided in
support of the construction, alteration, maintenance, and repair of
housing infrastructure projects in the United States. The purpose of
this RFI is to improve HUD's understanding of the current state of the
domestic market for products required in housing infrastructure
projects. HUD is especially interested in comments detailing domestic
materials sourcing, market readiness, other product supply
considerations, and whether specific housing products or their
components are manufactured in the United States.
DATES: Comment Due Date: April 15, 2024. Late-filed comments will be
considered to the extent practicable.
ADDRESSES: Interested persons are invited to submit comments on 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 the two methods
specified below. All submissions must refer to the above docket number
and title. Commenters are encouraged to identify the number of the
specific question or questions to which they are responding. Responses
should include the name(s) of the person(s) or organization(s) filing
the comment; however, because any responses received by HUD will be
publicly available, responses should not include any personally
identifiable
[[Page 10091]]
information or confidential commercial information. Business
confidential information can be submitted to
<a href="/cdn-cgi/l/email-protection#5e1c2b37323a1f333b2c373d3f1c2b271f333b2c373d3f1e362b3a70393128"><span class="__cf_email__" data-cfemail="88cafde1e4ecc9e5edfae1ebe9cafdf1c9e5edfae1ebe9c8e0fdeca6efe7fe">[email protected]</span></a>.
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 comments and communications
properly submitted to HUD will be available for public inspection and
copying between 8 a.m. and 5 p.m. weekdays at the above address. Due to
security measures at the HUD Headquarters building, an advance
appointment to review the public comments must be scheduled by calling
the Regulations Division at (202) 708-3055 (this is not a toll-free
number). HUD welcomes and is prepared to receive calls from individuals
who are deaf or hard of hearing, as well as individuals with speech or
communication disabilities. To learn more about how to make an
accessible telephone call, please visit: <a href="https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs</a>. Copies of all comments
submitted are available for inspection and downloading at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Faith Rogers, Department of Housing
and Urban Development, 451 Seventh Street SW, Room 10126, Washington,
DC 20410-5000, at (202) 402-7082 (this is not a toll-free number). HUD
welcomes and is prepared to receive calls from individuals who are deaf
or hard of hearing, as well as individuals with speech and
communication disabilities. To learn more about how to make an
accessible telephone call, please visit <a href="https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs</a>. HUD encourages submission
of questions about this document be sent to
<a href="/cdn-cgi/l/email-protection#befccbd7d2daffd3dbccd7dddffccbc7ffd3dbccd7dddffed6cbda90d9d1c8"><span class="__cf_email__" data-cfemail="2d6f584441496c40485f444e4c6f58546c40485f444e4c6d455849034a425b">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Responding to This Request for Information
HUD encourages supplier and other stakeholders to identify products
and categories of products that currently have sufficient domestic
availability to support HUD-assisted infrastructure projects, to assist
contractors and project sponsors in incorporating compliant products in
their projects, and to help HUD focus its activities to benefit
domestic manufacturers. To assist in gathering this information, HUD
seeks input from the public, including HUD's project sponsors, their
contractors and offerors, manufacturers, labor unions, transportation
and trade associations, and other interested parties. HUD seeks
information in several categories related to the domestic availability
of products commonly used in housing infrastructure projects that are
compliant with the Buy America Preference (BAP) requirements.
Please indicate in your written comments the area of interest
(product or category of product) and the topic number(s) below you are
commenting on and provide specific examples or information to
illustrate your comments where possible. You do not need to address
every topic and should focus on those where you have relevant expertise
or experience. In all cases, to the extent possible, please cite any
public data related to or that support your responses. If data is
available, but non-public, describe such data to the extent
permissible.
II. Build America, Buy America
The Build America, Buy America Act (``BABA'' or ``the Act'') was
enacted on November 15, 2021, as part of the Infrastructure Investment
and Jobs Act (``IIJA'') (Pub. L. 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.
[[Page 10092]]
III. HUD's Implementation of BABA
The IIJA and the Inflation Reduction Act (Pub. L. 117-169, Aug. 16,
2022) provided historic investments for federal infrastructure,
including $1 billion in funding for green retrofits. These developments
in addition to HUD's base funding, provide an opportunity for
significant expansion of domestic manufacturing capacity for products.
Since the enactment of BABA, HUD has worked diligently to develop a
plan to fully implement the BAP across its FFA programs. HUD
understands that advancing Made in America objectives is a continuous
effort and believes setting forth transparent implementation guidance
for FFA programs provides recipients, stakeholders, and industry
partners with the ability to implement the BAP efficiently and
effectively to infrastructure projects involving dwelling units for
eligible residents of public and assisted housing funded by HUD FFA. As
part of those efforts, HUD announced plans for a phased implementation
of the BAP requirements in connection with its award of FFA to all HUD
programs and corresponding waiver of the applicability of the BAP
consistent with the published implementation schedule.\1\ HUD also
published two general applicability, public interest waivers covering
Exigent Circumstances \2\ and De Minimis and Small Grants.\3\ HUD
subsequently published an extension of its Public Interest, General
Applicability Waiver of Build America, Buy America Provisions as
Applied to Tribal Recipients of HUD Federal Financial Assistance \4\ to
provide additional time for consultation concerning its efforts to
implement the Act and its Public Interest, General Applicability Waiver
of Build America, Buy America Provisions as Applied to Pacific Island/
Territory Recipients of HUD Federal Financial Assistance is under
review.\5\ All waivers can be found at <a href="https://www.hud.gov/program_offices/general_counsel/build_america_buy_america/waiver">https://www.hud.gov/program_offices/general_counsel/build_america_buy_america/waiver</a>.
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\1\ 88 FR 17001, March 21, 2023.
\2\ 87 FR 76505, December 14, 2022.
\3\ 87 FR 76502, December 14, 2022.
\4\ 88 FR 34514, May 30, 2023.
\5\ See 88 FR 52197, September 1, 2023.
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On June 1, 2022, HUD published ``Request for Information Relating
to the Implementation of the Build America, Buy America Act'' \6\ to,
among other things, gather additional information necessary to fully
implement the BAP for HUD programs. HUD thoroughly reviewed public
comments received in response to its 2022 Request for Information and
proposed general applicability waivers, in addition to housing
stakeholders' self-initiated comments submitted since the initial
effective date of BABA. Though helpful in informing prior actions,
these comments did not provide the level of detail necessary for HUD to
know what resources and guidance would be most helpful to help
recipients transition to compliance with the Buy America preference
requirements, to include identifying specific products purchased with
FFA dollars and whether those items are being procured from domestic
sources.
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\6\ See 87 FR 33193, June 1, 2022.
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HUD seeks greater clarity and data to analyze and respond to the
stakeholder comments, particularly in light of the ``Implementation
Guidance on Application of Buy America Preference in Federal Financial
Assistance Programs for Infrastructure'' (M-24-02) and the final
Guidance for Grants and Agreements set forth in parts 184 and 200 of
title 2 of the Code of Federal Regulations.\7\ HUD is seeking more
detailed product-specific information on the domestic availability of
iron, steel, construction materials and manufactured products commonly
used in HUD-assisted housing programs and infrastructure projects.
Responses to this RFI will improve HUD's understanding of the current
domestic market for these products to effectively implement BABA for
projects funded by its housing programs and to evaluate the potential
need for short-term product waivers from BABA requirements if products
are unavailable. It will also assist HUD in determining how best to
engage with industry to identify potential options to encourage the
expansion of domestic production in areas that are not currently
available and the timing for when items currently waived may become
available from domestic sources.
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\7\ See 88 FR 57750, August 23, 2023'.
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IV. OMB Implementation Guidance
On April 18, 2022, OMB issued the M-22-11 to heads of Executive
Departments and Agencies.\8\ OMB provided initial guidance to assist
agencies in developing interpretations of BABA and key terminology, how
to apply the BAP to FFA used for infrastructure, and how agencies
should structure a transparent waiver process.
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\8\ See Initial Implementation Guidance on Application of Buy
America Preference in Federal Financial Assistance Programs for
Infrastructure, M-22-11, available at <a href="https://www.whitehouse.gov/wp-content/uploads/2022/04/M-22-11.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/04/M-22-11.pdf</a>.
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On February 9, 2023, OMB issued a Notification of Proposed Guidance
in the Federal Register proposing a new Part 184 in 2 CFR chapter 1 to
support implementation of BABA and to clarify existing provisions in 2
CFR 200.322.\9\
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\9\ See 2 CFR parts 184 and 200.
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On August 23, 2023, OMB published its final Guidance for Grants and
Agreements in the Federal Register with revisions to provide additional
guidance on implementing the BAP statutory requirements and improve FFA
management and transparency. The new part 184.3 includes definitions
for key terms, including iron or steel products, manufactured products,
construction materials, and materials identified in section 70917(c) of
the Act.\10\ The guidance became effective October 23, 2023.
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\10\ See Public Law 117-58 at section 70917(c).
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On October 25, 2023, OMB issued M-24-02 to provide supplemental and
updated guidance such as modifying Section VII of M-22-11 on ``Issuing
Buy America Waivers'' and summarizing 2 CFR part 184 with definitions
of key terms.\11\ With final guidance, HUD is publishing this RFI in an
effort to understand the impact of compliance and applying the BAP to
construction materials and manufactured products as defined in Part
184.3 of the final guidance and pursuant to M-24-02.
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\11\ See 2 CFR 184.3.
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BABA requires each covered Federal agency to ensure that ``none of
the funds made available for a Federal financial assistance program for
infrastructure . . . [are] 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'' except if a waiver is
granted. (Pub. L. 117-58, sec. 70914). These requirements apply to an
entire infrastructure project funded by Federal financial assistance,
including those funded by HUD housing programs, even if it is also
funded by non-Federal funds. HUD is committed to ensuring strong and
effective BABA implementation and compliance.
For all predominantly iron or steel products used in infrastructure
projects that involve the obligation of Federal financial assistance,
all manufacturing processes of the iron and/or steel components,
beginning with initial melting and including application of a coating,
must occur in the United States. (Pub. L. 117-58, sec. 70912(6)(A)).
Manufactured products must be produced in the United States,
meaning the final point of manufacturing must occur in the United
States and the cost of the components of the manufactured product that
are mined, produced, or manufactured in the United States is
[[Page 10093]]
greater than 55 percent of the total cost of all components of the
manufactured product. (Pub. L. 117-58, sec. 70912(6)(B)).
For construction materials, all manufacturing processes must occur
in the United States. (Pub. L. 117-58, sec. 70912(6)(c)). Construction
materials include incorporated products primarily made of non-ferrous
metals, plastic and polymer-based products (including
polyvinylchloride), fiber optic cable (including drop cable), optical
fiber, glass, lumber, engineered wood, and drywall. (Pub. L. 117-58,
sec. 70911(5), and 2 CFR 184.6).
V. Request for Information
This RFI will assist HUD in implementing and ensuring compliance
with BABA based on the guidance provided by M-24-02 and the final
guidance on Grants and Agreements as set forth in 2 CFR parts 184 and
200.322. Responses to this RFI will assist HUD in furthering the goals
and objectives of BABA and provide information necessary to understand
the best methods to implement the BAP for HUD FFA used in housing
infrastructure projects to maximize the use of iron, steel,
construction materials, and manufactured products produced in the
United States. Through this RFI, HUD seeks information in Questions 1-4
regarding the domestic availability of specific housing infrastructure
products identified in this notice. HUD is interested in promptly
obtaining more information on this and other issues discussed in this
notice to assess if enough products/systems are currently available to
comply with BABA requirements or whether sufficient products would be
available in the future, and if so, when. This information will also be
supplied to all applicable federal agencies that also manage housing
infrastructure programs. In Question 5, HUD also seeks input and
recommendations on how to ensure efficient and cost-effective
compliance with BAP.
HUD analysis of material and manufactured product sourcing for the
construction of housing finds that many materials and manufactured
products used in the construction of housing are largely available from
domestic producers, such as: cement and concrete products;
architectural and structural metals (e.g., metal windows and doors,
sheet metal ductwork, and rails and fencing); petroleum and coal
products (e.g., asphalt roofing and paving materials, any petroleum-
based fuels and lubricating products); plastic products (e.g., plastic
piping, plumbing fixtures and polystyrene foam insulation); household
and institutional furniture and kitchen cabinets; wood products (sawn
lumber and treated wood products, plywood and engineered wood products,
and other wood products); and heating, ventilation, and air
conditioning equipment.
However, HUD identified items which may not be manufactured in the
United States with standards compliant with the Act, as well as items
which may be manufactured in the United States, but not with the
requisite share of cost of components to be considered compliant.
Through this notice, HUD is requesting information to assist HUD in
implementing and ensuring compliance with OMB standards. HUD welcomes
comments and information from the public on what products are most
utilized in HUD-assisted housing projects, and their availability from
domestic sources that meet requirements for iron, steel, construction
materials or manufactured products as specified in the Act. See Section
``I. Responding to this Request for Information'' for more information
about who is invited to comment on this notice.
HUD specifically requests information from the public on all
categories of products included in HUD infrastructure grant programs.
The following is an example list but not exhaustive:
--Lighting fixtures
--Electrical equipment and components
--Electrical wiring
--Ceramic plumbing fixtures
--Windows
--Home and garage doors
--Elevators
--Plumbing
--Other products for energy efficiency upgrades and climate resilience:
geothermal, solar panels, radiant heat, heat pumps, insultation (roof,
ceiling, wall, floor)
Questions 1, 2, 3, 4: For each of these products or categories of
products used in HUD infrastructure grant programs and based on your
current understanding of BABA requirements, HUD is requesting the
following information about the following four general topics: domestic
materials sourcing and manufacturing, market readiness, delivery lead
times and other. You may also respond to these prompts for products not
included in this list that are essential to completing the
construction, alteration, maintenance, or repair of HUD-assisted
housing projects. At the beginning of your response, please specify the
products for which you are providing an answer:
1. Domestic Materials Sourcing and Manufacturing
a. For each of the products or categories of products you
identified, please specify whether products are available that meet
BABA requirements (described above) or are currently manufactured in
the United States to meet a domestic final assembly condition. (Yes or
no). To the best of your ability, please identify the countries of
origin for the produces not sourced domestically.
b. Please identify whether the products in your response fall
within the iron and steel, manufactured products, or construction
materials categories of BABA.
c. If you answered ``Yes'' to Topic 1(a), to the best of your
knowledge.
i. Please identify all manufacturers that can either meet BABA
requirements or can currently manufacture products or categories of
products you specified in the United States. For products that meet the
condition of manufactured in the United States, please identify the
manufacturing location and percentage of components manufactured in the
United States as calculated by cost of components (if known).
ii. What is the current production capacity of the products that
can meet BABA requirements?
iii. What is the anticipated growth in BABA-compliant capacity over
the next five years? Does this anticipated growth consider the
increased funding provided across federal agencies to invest in clean
energy products? Please explain.
iv. For products able to meet BABA requirements, what is the
estimated lead time from purchase order to delivery to the project
site? Has this lead time increased or decreased in recent years?
d. If you answered ``No'' to Topic 1a:
i. What actions are manufacturers taking/could take to increase the
manufacturing of products that will meet BABA requirements?
ii. What additional support or incentives (e.g., financial,
rulemaking certainty, etc.) are needed to ensure a sufficient supply of
products that meet BABA requirements?
iii. How long might it take to implement the steps needed to
increase or begin production of BABA compliant products?
iv. If a plan is in place to manufacture BABA compliant products,
what is the volume of specific products that will follow BABA
requirements and in what time frame?
v. Will the volume of BABA compliant products be ramped up over
time, and, if so, at what annual growth rate?
[[Page 10094]]
vi. What are the limiting factors for the product's ability to meet
criteria for BABA compliance? For example, are there components of
these products for which it is hard to meet BABA requirements? Please
describe each component separately and indicate approximately what
percent of component value it represents.
2. Market Readiness
a. For all products specified in Topic 1(a), provide your
observations on the current and near-term demand expected for these
products or categories of products, using specific numbers where
possible. Does this estimate of future demand consider the increased
funding described above? Please explain.
b. Provide information regarding whether the current and/or near-
term manufacturing capacity would be adequate to meet the expected
market demand, citing specific numbers where possible. Please specify
any factors helping or preventing the industry from meeting the
expected demand today and in the near-term and provide information on
the current and expected availability or unavailability of key
components or sub-components of the product or category of products you
specified. If applicable, please identify products where there is only
one known domestic manufacturer prepared to meet Buy America
requirements.
c. Are there factors that make it difficult to credibly respond to
questions a and b of this section? If so, please describe the
limitations in your analysis as specifically as possible.
d. Are there opportunities for innovation (e.g., products that are
currently or potentially being developed in the U.S. that could offer
improved performance or reduced costs to HUD stakeholders?). If so,
what challenges and opportunities do you see to advancing this
innovation? (For example, some products, such as heat pumps, offer
lower life-cycle costs but higher initial costs; this change in cost
structure may lead to purchasing challenges.
3. Timing
a. Where known, for each product/category of products specified in
Topic 1, specify the current range of expected product delivery
timeframes. Are any existing supply chain delays applicable or
anticipated for the product(s) or critical components of the
product(s)?
b. Provide information, if available, on expected delivery
timeframe outlooks through the near-term future. Provide information,
if known, on whether current timing delivery concerns are related to a
temporary disruption.
c. Provide information on the current and expected near-term
average customer delivery time.
d. Provide information regarding global supply chain constraints,
local permitting, safety requirements and needs that may affect
delivery timeframes or extend installation time. Provide any known
information of products that are in the process of ``onshoring'' as a
result of recent statutory, regulatory, or market changes.
4. Other Practical Considerations
Please specify any other considerations for HUD regarding
production, products, systems, equipment, or components of products
used in housing infrastructure.
5. BAP Compliance and Impact
HUD seeks input and recommendations on how to ensure compliance
with BABA in the most efficient and cost-effective way. HUD is
interested in answers to the following questions that will help inform
Agency technical assistance and implementation:
a. What type of contractual language has been utilized to ensure
compliance with the BAP? If contractual language has been utilized to
ensure compliance with a Buy America requirement, when was it first
added?
b. Are there existing mechanisms to determine qualified contractors
that use American made iron, steel, manufactured products, or
construction materials? Furthermore, how do recipients currently track
contractor sourcing? What resources have been identified with respect
to contractor sourcing with the adoption of a domestic content
procurement preference or the BAP?
c. 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?
d. What other Federal agency funding do you use to complete a HUD
funded housing project?
e. What is the estimated impact of compliance with BAP on HUD
assisted programs?
f. What is the current cost associated with the development,
maintenance, and operation of affordable housing compliant with
applicable HUD requirements? What is the estimate of the impact of the
implementation of the BAP in connection with HUD-funded projects?
Examples of specific products would be especially helpful here.
All information submitted will assist HUD in determining the extent
to which additional guidance or other actions are necessary to
facilitate the robust implementation of the BAP requirements across
HUD's programs. Commenters should provide data and evidence to support
their responses to the questions in this RFI.
Dated: February 7, 2024.
Marcia L. Fudge,
Secretary.
[FR Doc. 2024-02900 Filed 2-12-24; 8:45 am]
BILLING CODE 4210-67-P
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</html>Indexed from Federal Register on February 13, 2024.
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.