Public Interest Exigent Circumstances Waiver of Build America, Buy America Provisions as Applied to Certain Recipients of HUD Federal Financial Assistance, 67053-67056 [2022-24340]

Download as PDF khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 87, No. 214 / Monday, November 7, 2022 / Notices repair of public housing, HUD will evaluate the infrastructure project as including the single relevant procurement contract for such maintenance or repairs, or, where applicable, the collection of procurements focused on the same specific objective (e.g., construction of a resident service space) or limited scope of work (e.g., lead based paint abatement). 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. For example, Community Development Block Grant (CDBG) funds may be used for infrastructure projects (e.g., water and sewer improvements, street improvements, neighborhood facilities) or non-infrastructure uses (e.g., senior services, youth services, operation of food banks, administrative and planning expenses). HUD estimates that 40 percent of CDBG funds awarded in 2021 ($1.4 billion of $3.5 billion total) were used on infrastructure projects where the BAP could apply. As HUD’s previous Notice advised and as supported by several comments received during the comment period, many of HUD’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, this waiver advances BABA by reducing the administrative burden to potential assistance recipients where the costs of compliance with BABA could distract from the focus on higher value BABA compliant items. Failure to provide recipients such flexibilities could delay the award for infrastructure projects as grantees and funding recipients must exert considerable effort accounting for the sourcing for miscellaneous, low-cost items. Moreover, HUD does not believe the waiver of the BAP for such awards will undermine the full and robust implementation of the Act or the ability of the agency to support the purposes behind the Act. HUD expects to review this waiver every five years from the effective date of this waiver or more often as appropriate. No funds obligated by HUD or the grantee/funding recipient during the period of the waiver that would be exempted from compliance with BAP as a result of the waiver will be required to apply the BAP. VerDate Sep<11>2014 16:45 Nov 04, 2022 Jkt 259001 67053 V. Impact of This Waiver on Other Federal Financial Assistance million appropriate or should it be capped at some other threshold? Where the BAP or other BABA requirements are made applicable to projects of a grantee or funding recipient by another Federal agency, the grantee or funding recipient may not rely on this waiver as a waiver of any requirement imposed by the other Federal agency for the projects, nor is the grantee or funding recipient exempt from the application of those requirements in accordance with the requirements of the Federal agency providing such Federal Financial Assistance. Marcia L. Fudge, Secretary. VI. 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 foreignsourced 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.1 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. Solicitation of Comments on the Waiver As required under section 70914 of the Act, HUD is soliciting comment from the public on the waiver announced in this Notice. In particular, HUD invites comments on whether the reliance on the Simplified acquisition threshold is an appropriate measure and if it is set at an appropriate level for purposes of the waiver. Additionally, HUD seeks comments on the percentage of costs excluded from coverage and whether there should be a cap on the total amount excluded from coverage. For example, should the total costs allowed to be excluded be limited only by the 5% exclusion, is the cap of $1 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/wpcontent/uploads/2021/12/M-22-08.pdf. PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 [FR Doc. 2022–24296 Filed 11–3–22; 11:15 am] BILLING CODE 4210–67–P DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT [Docket No. FR–6331–N–05] Public Interest Exigent Circumstances Waiver of Build America, Buy America Provisions as Applied to Certain Recipients of HUD Federal Financial Assistance Office of the Secretary, U.S. Department of Housing and Urban Development (HUD). ACTION: Notice. AGENCY: In accordance with the Build America, Buy America Act (‘‘BABA’’ or ‘‘the Act’’) this notice advises that HUD is proposing a departmentwide public interest waiver to the Buy America Domestic Content Procurement Preference (‘‘Buy America Preference,’’ or ‘‘BAP’’) for grantees and recipients of Federal Financial Assistance from HUD as applied to the iron, steel, manufactured products, and construction materials requirement of BABA in certain exigent circumstances. In accordance with the Act, HUD has found that this proposed departmentwide exigent circumstances waiver is in the public interest. The waiver will assist HUD and its grantees and funding recipients in preventing immediate delays to critically important projects that serve to ensuring the safety and health of HUD constituents and continuing to provide economic opportunity through housing and community development projects. Moreover, this waiver will assist HUD in working to strengthen the housing market to bolster the economy and protect consumers, meet the need for quality affordable rental homes, utilize housing as a platform for improving quality of life, and build inclusive and sustainable communities free from discrimination. DATES: HUD published this proposed waiver on its website on October 31, 2022. Comments on the proposed waiver set out in this document are due on or before November 15, 2022. 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. SUMMARY: E:\FR\FM\07NON1.SGM 07NON1 67054 Federal Register / Vol. 87, No. 214 / Monday, November 7, 2022 / Notices 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. 3. 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). khammond on DSKJM1Z7X2PROD with NOTICES 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 (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/telecommunicationsrelay-service-trs. HUD encourages submission of questions about this document be sent to BuildAmericaBuyAmerica@hud.gov. SUPPLEMENTARY INFORMATION: VerDate Sep<11>2014 16:45 Nov 04, 2022 Jkt 259001 I. 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). 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. Thus, starting May 14, 2022, new awards of Federal Financial Assistance from a program for infrastructure, and any of those funds obligated by the grantee, are covered under the BABA provisions of the Act, 41 U.S.C. 8301 note, unless covered by a waiver. Section 70912(4)(B) of the Act specifically exempts from the term Federal Financial Assistance certain assistance authorized under certain sections of the Robert T. Stafford Disaster Relief and Emergency Assistance Act or pre and post disaster or emergency response expenditures. 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 produced a report identifying and evaluating all of HUD’s Federal Financial Assistance programs for compliance with the BAP on January 19, 2022, by Federal Register notice ‘‘Identification of Federal Financial Assistance Infrastructure Programs Subject to the Build America, Buy America Provisions of the Infrastructure Investment and Jobs Act’’. (87 FR 2894) In order to ensure orderly implementation of the BAP across HUD’s programs, HUD published two general applicability waivers for HUD’s programs on May 3, 2022. The first notice, ‘‘General Applicability Waiver of Build America, Buy America Provisions as Applied to Recipients of HUD Federal Financial Assistance’’ (87 FR 26219), extended the implementation PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 date for the BAP until November 14, 2022, unless covered by a subsequent waiver. Thus, no funds obligated by HUD before November 14, 2022, are subject to the BAP. The second notice, ‘‘General Applicability Waiver of Build America, Buy America Provisions as Applied to Tribal Recipients of HUD Federal Financial Assistance’’ (87 FR 26221), extended the implementation date for the BAP for Federal Financial Assistance provided to Tribal recipients for a period of one year. Additionally, HUD published a Request for Information ‘‘Request for Information Relating to the Implementation of the Build America, Buy America Act’’ to gather additional information necessary to fully implement the BAP for HUD programs and to adequately prepare necessary Paperwork Reduction Act notices relating to such implementation. (June 1, 2022, 87 FR 33193) Additional details on HUD’s implementation of the BABA requirements can be found at https:// www.hud.gov/program_offices/general_ counsel/BABA. III. Waiver Authority 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. IV. Public Interest in This General Applicability Waiver of Buy America Provisions HUD is proposing this waiver not as an alternative to increasing domestic production, but as an important tool to implement the Buy American provisions in the most efficient manner in order to promote investment in HUD’s domestic manufacturing base, strengthen critical supply chains, and position United States workers and businesses to compete globally in the 21st century. HUD understands that advancing Made in America objectives is a continuous effort. HUD plans to move forward to implement the new requirements in a way that maximizes E:\FR\FM\07NON1.SGM 07NON1 Federal Register / Vol. 87, No. 214 / Monday, November 7, 2022 / Notices khammond on DSKJM1Z7X2PROD with NOTICES coordination and collaboration to support long-term investments in domestic production. HUD recognizes that there are exigent circumstances, particularly with respect to the conduct of maintenance and other rehabilitation and repair activities in connection with affordable housing and community development projects, that warrant the exclusion from the application of the BAP in the public interest. Specifically, where an award for Federal Financial Assistance is being utilized to repair or conduct maintenance of infrastructure within the meaning of the Act in exigent circumstances, the ability to quickly respond and address the need is critical to ensuring the protection of life, safety and property of residents and community members. This ability to immediately respond to such situations could be compromised if the grantee or recipient is required to navigate the complex BAP requirements for such an activity in the midst of the exigent circumstances.1 Such a waiver will allow HUD grantees and funding recipients to focus their efforts on such critical projects. Proposing the waiver is not an alternative to increasing domestic production. It is actually a tool to promote investment in our domestic manufacturing base in the long term. The waiver is in the interest of efficiency, to ease burdens for grantees and recipients, avoid unnecessary costs, and avoid delays to projects that are critical and time sensitive. The waiver will also allow HUD to focus, particularly in the early phases of BABA implementation, on key products and critical supply chains where increased U.S. manufacturing can best advance HUD’s economic and national security. This waiver will also allow recipients to continue with projects. Without this waiver, HUD will likely lose grantee and funding recipient participation, be 1 Please note that section 70912(4)(B) of the Act excludes ‘‘pre and post disaster or emergency response expenditures from inclusion within the definition of Federal Financial Assistance subject to the BAP. The Office of Management and Budget’s April 18, 2022, memorandum, ‘‘Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure’’ (M–22–11) confirms that pre and post disaster or emergency response expenditures’’ includes those expenditures ‘‘that are (1) authorized by statutes other than the Stafford Act, 42 U.S.C. 5121 et seq., and (2) 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, id. section 5122(1), (2).’’ As a result, HUD’s provision of Federal Financial Assistance through specific emergency and disaster recovery grants, (e.g., CDBG–DR grants), which are appropriated by Congress in in response to an emergency or disaster within the meaning of the Stafford Act are statutorily excluded from the applicability of BAP. VerDate Sep<11>2014 16:45 Nov 04, 2022 Jkt 259001 exposed to liabilities if HUD forces grantees and funding recipients to modify their current plans to come into compliance or delay critical activities to protect life, safety and property, and will negatively impact the most vulnerable Americans HUD seeks to serve. For example, if a public housing development is damaged by a boiler malfunction in the middle of the winter, the need to repair the damaged structure and replace the boiler is of immediate concern in protecting the life, safety, and property of the residents of that public housing development. Additionally, for example, if an emergency or fire exit door is damaged and becomes unusable, the need to repair the exit door is of immediate concern to protecting the life, safety and property of the residents of that public housing development. Included within the scope of exigent circumstances are the remediation of defects impacting housing quality standards that existing HUD policy requires to be completed within 30 days or less. The potential consequences and impact of incidents meeting these standards can endanger the life, safety or property of residents and the community, and necessitate urgent action to remediate the issue. Thus, for purposes of this waiver, HUD will consider exigent circumstances to include circumstances where undertaking the BAP covered activity without delay is necessary to protect life, safety or provide necessary security to residents or community members, or to prevent the destruction of property. The waiver of BAP will apply provided such remediation is carried out within the time period required by HUD policy. 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. For example, Community Development Block Grant (‘‘CDBG’’) funds may be used for infrastructure projects (e.g., water and sewer improvements, street improvements, neighborhood facilities) or non-infrastructure uses (e.g., senior services, youth services, operation of food banks, administrative and planning expenses). HUD estimates that 40 percent of CDBG funds awarded in 2021 ($1.4 billion of $3.5 billion total) were used on infrastructure projects where the BAP could apply. HUD does not currently track funds used on infrastructure projects for an exigent circumstance, but estimates that in an average year, less than 1 percent of annual CDBG funds are used for urgent needs activities. PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 67055 HUD believes that full compliance with the BAP in exigent circumstances will create undue hardship due to the anticipated burdensome delays to ensure compliance with the BAP and, as noted, could jeopardize the life, health and safety of residents and community members unnecessarily for funds being utilized in exigent circumstances. As a result, HUD has determined that it is not in the public interest to impose the BAP on projects completing covered infrastructure activities in exigent circumstances. HUD expects to review this waiver every five years from the effective date of this waiver or more often as appropriate. Funds obligated by HUD during the time period this waiver is effective will not be required to apply the BAP when funds are expended by the grantee or funding recipient in connection with exigent circumstances as described in this waiver. V. Impact of This Waiver on Other Federal Financial Assistance Where the BAP or other BABA requirements are made applicable to projects of a grantee or funding recipient by another Federal agency, the grantee or funding recipient may not rely on this waiver as a waiver of any requirement imposed by the other Federal agency for the projects, nor is the grantee or funding recipient exempt from the application of those requirements in accordance with the requirements of the Federal agency providing such Federal Financial Assistance. VI. 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 foreignsourced 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.2 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 2 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/wpcontent/uploads/2021/12/M-22-08.pdf. E:\FR\FM\07NON1.SGM 07NON1 67056 Federal Register / Vol. 87, No. 214 / Monday, November 7, 2022 / Notices use of waivers caused by dumping of foreign-sourced products. VII. Solicitation of Comments on the Waiver As required under section 70914 of the Act, HUD is soliciting comment from the public on the public interest waiver announced in this Notice. In particular, HUD invites comments on the definition of exigent circumstances that serves as the foundation for the application of the waiver, including the types of activities undertaken in response to such circumstances that should be considered within the scope of this waiver. HUD also invites comments on the process through which grantees or funding recipients may demonstrate or document reliance on this waiver. Marcia L. Fudge, Secretary. [FR Doc. 2022–24340 Filed 11–3–22; 4:15 pm] BILLING CODE 4210–67–P DEPARTMENT OF THE INTERIOR Bureau of Land Management [234.LLID957000.L14400000. BJ0000.241A00] Notice of Filing of Plats of Survey, Idaho AGENCY: Bureau of Land Management, Interior. ACTION: Notice of filing of plats of surveys. The Bureau of Land Management (BLM) has officially filed the plats of survey of the lands described below in the BLM, Idaho State Office, Boise, Idaho, on the dates specified below: khammond on DSKJM1Z7X2PROD with NOTICES SUMMARY: Boise Meridian, Idaho T. 2 S., R. 4 W., Sections 2 and 11, accepted September 14, 2022. T. 33 N., R. 3 E., Section 33, accepted September 15, 2022. T. 1 S., R. 3 E., Section 21, accepted September 16, 2022. T. 23 N., R. 1 E., Section 27, accepted September 20, 2022. T. 5 S., R. 7 E., Sections 23, 24, 25, 26 and 35, accepted September 21, 2022. T. 13 N., R. 5 W., Sections 24, 25 and 36, accepted September 22, 2022. T. 13 N., R. 4 W., Section 30, accepted September 22, 2022. A copy of the plats may be obtained from the Public Room at the BLM, Idaho State Office, 1387 S Vinnell Way, Boise, Idaho 83709, upon required payment. FOR FURTHER INFORMATION CONTACT: Monte L. King, Branch of Cadastral ADDRESSES: VerDate Sep<11>2014 16:45 Nov 04, 2022 Jkt 259001 Survey, BLM, 1387 South Vinnell Way, Boise, Idaho 83709–1657; (208) 373– 3984; email: mking@blm.gov. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 7–1–1 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-ofcontact in the United States. SUPPLEMENTARY INFORMATION: The plat, in two sheets, of the dependent resurvey of portions of the north boundary and subdivisional lines and the subdivision of sections 2 and 11, Township 2 South, Range 4 West, Boise Meridian, Idaho, Group Number 1460, was accepted September 14, 2022. The plat, in one sheet, incorporating the field notes of the dependent resurvey of portions of the south boundary and subdivisional lines and the subdivision of section 33, Township 33 North, Range 3 East, Boise Meridian, Idaho, Group Number 1472, was accepted September 15, 2022. The plat, in one sheet, incorporating the field notes of the dependent resurvey of a portion of the subdivisional lines, Township 1 South, Range 3 East, Boise Meridian, Idaho, Group Number 1490, was accepted September 16, 2022. The plat, in one sheet, incorporating the field notes of the dependent resurvey of a portion of the subdivisional lines and the subdivision of section 27, Township 23 North, Range 1 East, Boise Meridian, Idaho, Group Number 1498, was accepted September 20, 2022. The plat, in one sheet, incorporating the field notes of the dependent resurvey of portions of the south and east boundaries, and subdivisional lines and the subdivision of sections 23, 24, 25, 26 and 35, Township 5 South, Range 7 East, Boise Meridian, Idaho, Group Number 1541, was accepted September 21, 2022. The plat, in one sheet, incorporating the field notes of the dependent resurvey of portions of the south boundary, east boundary, and subdivisional lines and the subdivision of sections 24, 25, and 36, Township 13 North, Range 5 West, Boise Meridian, Idaho, Group Number 1499, was accepted September 22, 2022. The plat, in one sheet, incorporating the field notes of the dependent resurvey of a portion of the subdivisional lines and the subdivision of section 30, Township 13 North, Range 4 West, Boise Meridian, Idaho, PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 Group Number 1501, was accepted September 22, 2022. A person or party who wishes to protest one or more plats of survey identified above must file a written notice of protest with the Chief Cadastral Surveyor for Idaho, BLM within 30 calendar days from the date of this publication at the address listed in the ADDRESSES section of this notice. The protest must identify the plat(s) of survey that the person or party wishes to protest and contain all reasons and evidence in support of the protest. A protest is considered filed on the date it is received by the Chief Cadastral Surveyor for Idaho during regular business hours; if received after regular business hours, a protest will be considered filed the next business day. Before including your address, phone number, email address, or other personal identifying information in a protest, you should be aware that the documents you submit, including your personal identifying information, may be made publicly available in their entirety at any time. While you can ask us to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. (Authority: 43 U.S.C., Chapter 3). Monte L. King, Acting Chief Cadastral Surveyor for Idaho. [FR Doc. 2022–24147 Filed 11–4–22; 8:45 am] BILLING CODE 4310–GG–P DEPARTMENT OF THE INTERIOR National Indian Gaming Commission Fee Rate and Fingerprint Fees National Indian Gaming Commission, Interior. ACTION: Notice. AGENCY: Notice is hereby given that the National Indian Gaming Commission has adopted its annual fee rates of 0.00% for tier 1 and 0.08% (.0008) for tier 2, which maintain the current fee rates. These rates shall apply to all assessable gross revenues from each gaming operation under the jurisdiction of the Commission. If a tribe has a certificate of self-regulation, the fee rate on Class II revenues shall be 0.04% (.0004) which is one-half of the annual fee rate. The annual fee rates are effective November 1, 2022 and will remain in effect until new rates are adopted. The National Indian Gaming Commission has also adopted its fingerprint processing fee of $45 per card which represents an increase of SUMMARY: E:\FR\FM\07NON1.SGM 07NON1

Agencies

[Federal Register Volume 87, Number 214 (Monday, November 7, 2022)]
[Notices]
[Pages 67053-67056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24340]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-6331-N-05]


Public Interest Exigent Circumstances Waiver of Build America, 
Buy America Provisions as Applied to Certain Recipients of HUD Federal 
Financial Assistance

AGENCY: Office of the Secretary, U.S. Department of Housing and Urban 
Development (HUD).

ACTION: Notice.

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

SUMMARY: In accordance with the Build America, Buy America Act 
(``BABA'' or ``the Act'') this notice advises that HUD is proposing a 
departmentwide public interest waiver to the Buy America Domestic 
Content Procurement Preference (``Buy America Preference,'' or ``BAP'') 
for grantees and recipients of Federal Financial Assistance from HUD as 
applied to the iron, steel, manufactured products, and construction 
materials requirement of BABA in certain exigent circumstances. In 
accordance with the Act, HUD has found that this proposed 
departmentwide exigent circumstances waiver is in the public interest. 
The waiver will assist HUD and its grantees and funding recipients in 
preventing immediate delays to critically important projects that serve 
to ensuring the safety and health of HUD constituents and continuing to 
provide economic opportunity through housing and community development 
projects. Moreover, this waiver will assist HUD in working to 
strengthen the housing market to bolster the economy and protect 
consumers, meet the need for quality affordable rental homes, utilize 
housing as a platform for improving quality of life, and build 
inclusive and sustainable communities free from discrimination.

DATES: HUD published this proposed waiver on its website on October 31, 
2022. Comments on the proposed waiver set out in this document are due 
on or before November 15, 2022.

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.

[[Page 67054]]

    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.
    3. 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).

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 (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. 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). 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. Thus, 
starting May 14, 2022, new awards of Federal Financial Assistance from 
a program for infrastructure, and any of those funds obligated by the 
grantee, are covered under the BABA provisions of the Act, 41 U.S.C. 
8301 note, unless covered by a waiver. Section 70912(4)(B) of the Act 
specifically exempts from the term Federal Financial Assistance certain 
assistance authorized under certain sections of the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act or pre and post disaster 
or emergency response expenditures.

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 produced a report identifying and evaluating all of HUD's 
Federal Financial Assistance programs for compliance with the BAP on 
January 19, 2022, by Federal Register notice ``Identification of 
Federal Financial Assistance Infrastructure Programs Subject to the 
Build America, Buy America Provisions of the Infrastructure Investment 
and Jobs Act''. (87 FR 2894) In order to ensure orderly implementation 
of the BAP across HUD's programs, HUD published two general 
applicability waivers for HUD's programs on May 3, 2022. The first 
notice, ``General Applicability Waiver of Build America, Buy America 
Provisions as Applied to Recipients of HUD Federal Financial 
Assistance'' (87 FR 26219), extended the implementation date for the 
BAP until November 14, 2022, unless covered by a subsequent waiver. 
Thus, no funds obligated by HUD before November 14, 2022, are subject 
to the BAP. The second notice, ``General Applicability Waiver of Build 
America, Buy America Provisions as Applied to Tribal Recipients of HUD 
Federal Financial Assistance'' (87 FR 26221), extended the 
implementation date for the BAP for Federal Financial Assistance 
provided to Tribal recipients for a period of one year. Additionally, 
HUD published a Request for Information ``Request for Information 
Relating to the Implementation of the Build America, Buy America Act'' 
to gather additional information necessary to fully implement the BAP 
for HUD programs and to adequately prepare necessary Paperwork 
Reduction Act notices relating to such implementation. (June 1, 2022, 
87 FR 33193)
    Additional details on HUD's implementation of the BABA requirements 
can be found at https://www.hud.gov/program_offices/general_counsel/BABA.

III. Waiver Authority

    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.

IV. Public Interest in This General Applicability Waiver of Buy America 
Provisions

    HUD is proposing this waiver not as an alternative to increasing 
domestic production, but as an important tool to implement the Buy 
American provisions in the most efficient manner in order to promote 
investment in HUD's domestic manufacturing base, strengthen critical 
supply chains, and position United States workers and businesses to 
compete globally in the 21st century. HUD understands that advancing 
Made in America objectives is a continuous effort. HUD plans to move 
forward to implement the new requirements in a way that maximizes

[[Page 67055]]

coordination and collaboration to support long-term investments in 
domestic production.
    HUD recognizes that there are exigent circumstances, particularly 
with respect to the conduct of maintenance and other rehabilitation and 
repair activities in connection with affordable housing and community 
development projects, that warrant the exclusion from the application 
of the BAP in the public interest. Specifically, where an award for 
Federal Financial Assistance is being utilized to repair or conduct 
maintenance of infrastructure within the meaning of the Act in exigent 
circumstances, the ability to quickly respond and address the need is 
critical to ensuring the protection of life, safety and property of 
residents and community members. This ability to immediately respond to 
such situations could be compromised if the grantee or recipient is 
required to navigate the complex BAP requirements for such an activity 
in the midst of the exigent circumstances.\1\ Such a waiver will allow 
HUD grantees and funding recipients to focus their efforts on such 
critical projects. Proposing the waiver is not an alternative to 
increasing domestic production. It is actually a tool to promote 
investment in our domestic manufacturing base in the long term. The 
waiver is in the interest of efficiency, to ease burdens for grantees 
and recipients, avoid unnecessary costs, and avoid delays to projects 
that are critical and time sensitive. The waiver will also allow HUD to 
focus, particularly in the early phases of BABA implementation, on key 
products and critical supply chains where increased U.S. manufacturing 
can best advance HUD's economic and national security. This waiver will 
also allow recipients to continue with projects. Without this waiver, 
HUD will likely lose grantee and funding recipient participation, be 
exposed to liabilities if HUD forces grantees and funding recipients to 
modify their current plans to come into compliance or delay critical 
activities to protect life, safety and property, and will negatively 
impact the most vulnerable Americans HUD seeks to serve.
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    \1\ Please note that section 70912(4)(B) of the Act excludes 
``pre and post disaster or emergency response expenditures from 
inclusion within the definition of Federal Financial Assistance 
subject to the BAP. The Office of Management and Budget's April 18, 
2022, memorandum, ``Initial Implementation Guidance on Application 
of Buy America Preference in Federal Financial Assistance Programs 
for Infrastructure'' (M-22-11) confirms that pre and post disaster 
or emergency response expenditures'' includes those expenditures 
``that are (1) authorized by statutes other than the Stafford Act, 
42 U.S.C. 5121 et seq., and (2) 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, id. section 
5122(1), (2).'' As a result, HUD's provision of Federal Financial 
Assistance through specific emergency and disaster recovery grants, 
(e.g., CDBG-DR grants), which are appropriated by Congress in in 
response to an emergency or disaster within the meaning of the 
Stafford Act are statutorily excluded from the applicability of BAP.
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    For example, if a public housing development is damaged by a boiler 
malfunction in the middle of the winter, the need to repair the damaged 
structure and replace the boiler is of immediate concern in protecting 
the life, safety, and property of the residents of that public housing 
development. Additionally, for example, if an emergency or fire exit 
door is damaged and becomes unusable, the need to repair the exit door 
is of immediate concern to protecting the life, safety and property of 
the residents of that public housing development. Included within the 
scope of exigent circumstances are the remediation of defects impacting 
housing quality standards that existing HUD policy requires to be 
completed within 30 days or less. The potential consequences and impact 
of incidents meeting these standards can endanger the life, safety or 
property of residents and the community, and necessitate urgent action 
to remediate the issue. Thus, for purposes of this waiver, HUD will 
consider exigent circumstances to include circumstances where 
undertaking the BAP covered activity without delay is necessary to 
protect life, safety or provide necessary security to residents or 
community members, or to prevent the destruction of property. The 
waiver of BAP will apply provided such remediation is carried out 
within the time period required by HUD policy.
    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. For example, Community 
Development Block Grant (``CDBG'') funds may be used for infrastructure 
projects (e.g., water and sewer improvements, street improvements, 
neighborhood facilities) or non-infrastructure uses (e.g., senior 
services, youth services, operation of food banks, administrative and 
planning expenses). HUD estimates that 40 percent of CDBG funds awarded 
in 2021 ($1.4 billion of $3.5 billion total) were used on 
infrastructure projects where the BAP could apply. HUD does not 
currently track funds used on infrastructure projects for an exigent 
circumstance, but estimates that in an average year, less than 1 
percent of annual CDBG funds are used for urgent needs activities.
    HUD believes that full compliance with the BAP in exigent 
circumstances will create undue hardship due to the anticipated 
burdensome delays to ensure compliance with the BAP and, as noted, 
could jeopardize the life, health and safety of residents and community 
members unnecessarily for funds being utilized in exigent 
circumstances. As a result, HUD has determined that it is not in the 
public interest to impose the BAP on projects completing covered 
infrastructure activities in exigent circumstances.
    HUD expects to review this waiver every five years from the 
effective date of this waiver or more often as appropriate. Funds 
obligated by HUD during the time period this waiver is effective will 
not be required to apply the BAP when funds are expended by the grantee 
or funding recipient in connection with exigent circumstances as 
described in this waiver.

V. Impact of This Waiver on Other Federal Financial Assistance

    Where the BAP or other BABA requirements are made applicable to 
projects of a grantee or funding recipient by another Federal agency, 
the grantee or funding recipient may not rely on this waiver as a 
waiver of any requirement imposed by the other Federal agency for the 
projects, nor is the grantee or funding recipient exempt from the 
application of those requirements in accordance with the requirements 
of the Federal agency providing such Federal Financial Assistance.

VI. 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.\2\ 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

[[Page 67056]]

use of waivers caused by dumping of foreign-sourced products.
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    \2\ 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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VII. Solicitation of Comments on the Waiver

    As required under section 70914 of the Act, HUD is soliciting 
comment from the public on the public interest waiver announced in this 
Notice. In particular, HUD invites comments on the definition of 
exigent circumstances that serves as the foundation for the application 
of the waiver, including the types of activities undertaken in response 
to such circumstances that should be considered within the scope of 
this waiver. HUD also invites comments on the process through which 
grantees or funding recipients may demonstrate or document reliance on 
this waiver.

Marcia L. Fudge,
Secretary.
[FR Doc. 2022-24340 Filed 11-3-22; 4:15 pm]
BILLING CODE 4210-67-P
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