[Federal Register Volume 89, Number 30 (Tuesday, February 13, 2024)]
[Notices]
[Pages 10090-10094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02900]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 www.regulations.gov. 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 
[email protected].
    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 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: https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs. Copies of all comments 
submitted are available for inspection and downloading at http://www.regulations.gov.

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 https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs. HUD encourages submission 
of questions about this document be sent to 
[email protected].

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 https://www.hud.gov/program_offices/general_counsel/build_america_buy_america/waiver.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \6\ See 87 FR 33193, June 1, 2022.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \7\ See 88 FR 57750, August 23, 2023'.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \8\ See Initial Implementation Guidance on Application of Buy 
America Preference in Federal Financial Assistance Programs for 
Infrastructure, M-22-11, available at https://www.whitehouse.gov/wp-content/uploads/2022/04/M-22-11.pdf.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \9\ See 2 CFR parts 184 and 200.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \10\ See Public Law 117-58 at section 70917(c).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \11\ See 2 CFR 184.3.
---------------------------------------------------------------------------

    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