[Federal Register Volume 87, Number 85 (Tuesday, May 3, 2022)]
[Notices]
[Pages 26219-26221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 www.regulations.gov. 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 
www.regulations.gov. 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 
www.regulations.gov 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 www.regulations.gov.

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 
[email protected].

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, https://www.whitehouse.gov/wp-content/uploads/2021/12/M-22-08.pdf.
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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: https://www.hud.gov/program_offices/general_counsel/BABA.

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

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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