Public Interest Phased Implementation Waiver of Build America, Buy America Provisions as Applied to Recipients of HUD Federal Financial Assistance, 67709-67711 [2022-24510]
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Federal Register / Vol. 87, No. 216 / Wednesday, November 9, 2022 / Notices
Dated: November 3, 2022.
Jerry L. Rigdon,
Deputy Chief, Regulatory Coordination
Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services,
Department of Homeland Security.
[FR Doc. 2022–24405 Filed 11–8–22; 8:45 am]
BILLING CODE 9111–97–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
[Docket No. FR–6331–N–06]
Public Interest Phased Implementation
Waiver of Build America, Buy America
Provisions as Applied to 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 public interest waiver to
further HUD’s phased implementation
of the Buy America Domestic Content
Procurement Preference (‘‘Buy America
Preference,’’ or ‘‘BAP’’) for recipients of
Federal Financial Assistance (‘‘FFA’’)
provided by HUD. On May 5, 2022,
HUD previously issued a separate
waiver covering all FFA obligated by
HUD on or before November 14, 2022,
including Community Development
Block Grant (‘‘CDBG’’) formula grants.
In order to fully focus on the successful
implementation of the BAP in CDBG
formula grants, one of HUD’s largest
grant programs, HUD has determined
that it is in the public interest to
propose a new public interest waiver of
the application of the BAP for all other
FFA provided by HUD. HUD is
proposing that this waiver cover all FFA
obligated by HUD during the ninety (90)
day period after its effective date except
for those funds utilized in connection
with the purchase of iron or steel
products in infrastructure projects
funded by CDBG formula grants
obligated by HUD on or after November
15, 2022. In addition, in the case of FFA
obligated by HUD on or after November
15, 2022, but prior to the effective date
of the final waiver, the waiver will
apply to all expenditures incurred on or
after the date of the final waiver, except
for those funds utilized in connection
with the purchase of iron or steel
products in infrastructure projects
funded by CDBG formula grants
obligated by HUD on or after November
15, 2022. HUD is also, through this
waiver, soliciting specific comment on
the further phased implementation of
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SUMMARY:
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the BAP in connection with the iron and
steel products used in other non-CDBG
formula grant FFA provided by HUD
and in the full implementation of the
BAP in connection with the use of
construction materials and
manufactured products in all
infrastructure projects across HUD’s
FFA programs.
DATES: HUD published this proposed
waiver on its website on November 3,
2022. Comments on the waiver
proposed in this document are due on
or before November 17, 2022. HUD will
consider comments received and
announce any subsequent changes to
this waiver through a subsequent notice.
If issued, the waiver would be
applicable to awards that are obligated
on the effective date of the waiver and
eighty-nine (89) days thereafter for a
total of ninety (90) days.
ADDRESSES: Interested persons are
invited to submit comments on this
public interest, 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.
3. Public Inspection of Comments. All
properly submitted comments and
communications submitted to HUD will
be available for public inspection and
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67709
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/telecommunicationsrelay-service-trs. HUD encourages
submission of questions about this
document be sent to
BuildAmericaBuyAmerica@hud.gov.
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’’) (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. Thus, beginning May 14, 2022,
new awards of FFA by HUD through a
program for infrastructure, and any of
those newly obligated funds then
obligated by the grantee, are covered
under BABA provisions of the Act, 41
U.S.C. 8301 note, unless covered by a
waiver.
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
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67710
Federal Register / Vol. 87, No. 216 / Wednesday, November 9, 2022 / Notices
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,
on June 1, 2022(87 FR 33193) 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.
Following the expiration of the
‘‘General Applicability Waiver of Build
America, Buy America Provisions as
Applied to Recipients of HUD Federal
Financial Assistance’’ (87 FR 26219),
HUD will fully implement the BAP for
purposes of the purchase of iron and
steel products used in infrastructure
projects funded with Federal Financial
Assistance provided by HUD through its
CDBG formula grants obligated by HUD
on or after November 15, 2022.
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 and
other Federal agencies have 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
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17:09 Nov 08, 2022
Jkt 259001
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, General
Applicability Waiver of Buy America
Provisions
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),1 encourages agencies to consider
ways to provide the assistance to
funding recipients that is necessary and
effective for the implementation of the
BAP, including consideration of phased
implementation of BAP where
appropriate.
In Fiscal Year 2022, HUD grantees
will receive more than $15 billion
through the Department’s programs
where infrastructure is an eligible
activity that 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 Notices 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
America preferences. Because the
potential application of BAP mandated
by the Act is new to the majority of
HUD’s programs and Federal Financial
Assistance (‘‘FAA’’), HUD is choosing to
implement the BAP first with respect to
all iron and steel products used in
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.
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infrastructure projects funded with FFA
provided by HUD through its CDBG
formula grants on or after November 15,
2022. In order to focus on this
implementation, HUD is proposing to
waive the application of the BAP in
connection with all other FAA. This
will provide an additional limited
period to allow for further consideration
of the most efficient methods of
implementation of the BAP across the
remaining HUD programs for
construction materials and
manufactured products more generally.
This waiver advances BABA by
reducing the administrative burden to
potential assistance recipients where the
costs of uncertainty in compliance with
BABA could distract from the focus on
the efficient and effective
implementation of BABA in one of
HUD’s largest FFA programs and allows
for broader phased implementation once
further clarity and guidance on the
implementation is received. Failure to
provide recipients such flexibilities
could delay the award for infrastructure
projects as grantees and funding
recipients must exert considerable effort
in accounting for the sourcing for
miscellaneous, low-cost construction
materials without the benefit of
complete guidance on the Act’s
requirements.
HUD believes that better coordination
with HUD FAA recipients in the
implementation of BABA will avoid
unnecessary and undue hardship. Such
a waiver will allow grantees and
funding recipients to focus their efforts
on such critical projects. Proposing this
waiver is not an alternative to increasing
domestic production. Rather this waiver
will 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
our economic and national security.
This waiver will also allow grantees and
funding recipients to continue with
projects in connection with iron and
steel products where Made in America
requirements have long been
contemplated—providing greater ease of
implementation for HUD’s CDBG
formula grantees. Without this waiver,
HUD grantee and funding recipient
participation could be impacted, such as
modification of current plans.
As HUD’s previous Notice advised
and as supported by several comments
received during the comment period,
many of the HUD’s programs that may
be subject to the BAP and have
previously not required compliance
with similar Buy America preferences.
Because the potential application of
BAP mandated by the Act is new to the
E:\FR\FM\09NON1.SGM
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Federal Register / Vol. 87, No. 216 / Wednesday, November 9, 2022 / Notices
majority of HUD’s FFA programs, this
waiver advances BABA by targeting the
initial phased implementation to a welldeveloped industry in connection with
infrastructure projects being undertaken
by sophisticated CDBG formula
grantees. HUD is seeking comment on
the further implementation of the BAP
but will focus specific attention to the
full implementation of the BAP in
connection with the use of iron and
steel in infrastructure projects in other
FFA programs utilizing HUD funds
within this waiver period.
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.
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V. Impact of This Waiver on Other
Federal Financial Assistance
No funds that have been obligated by
HUD before November 14, 2022, or
during the pendency of this waiver will
require compliance with the BAP, with
the exception of iron and steel products
used in connection with infrastructure
projects funded through CDBG formula
grants obligated by HUD on or after
November 15, 2022, or unless otherwise
required by another FFA award. Where
the BAP or other BABA requirements
are made applicable to a project of a
grantee or funding recipient by another
Federal agency, those requirements are
not waived by this waiver, 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
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.
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17:09 Nov 08, 2022
Jkt 259001
will perform additional market research
during the waiver period to better
understand the market and to limit the
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 waiver
announced in this Notice. In particular,
HUD invites comments on the waiver of
application of the BAP for iron and steel
products in connection with
infrastructure projects funded through
HUD’s FFA programs other than CDBG
formula grants. HUD also seeks specific
comment on how it may best further
phase in the application of the BAP for
all construction materials and
manufactured products in connection
with CDBG formula grants and all other
HUD FFA programs. HUD invites
comments on what time period would
be appropriate for purposes of achieving
these various phases of orderly
implementation of the Act.
Marcia L. Fudge,
Secretary.
[FR Doc. 2022–24510 Filed 11–7–22; 11:15 am]
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[2231A2100DD/AAKC001030/
A0A501010.999900]
Indian Gaming; Extension of TribalState Class III Gaming Compact
(Rosebud Sioux Tribe and the State of
South Dakota)
Bureau of Indian Affairs,
Interior.
ACTION: Notice.
AGENCY:
This notice announces the
extension of the Class III gaming
compact between the Rosebud Sioux
Tribe of the Rosebud Indian Reservation
and the State of South Dakota.
DATES: The extension takes effect on
November 9, 2022.
FOR FURTHER INFORMATION CONTACT: Ms.
Paula L. Hart, Director, Office of Indian
Gaming, Office of the Assistant
Secretary—Indian Affairs, Washington,
DC 20240, (202) 219–4066.
SUPPLEMENTARY INFORMATION: An
extension to an existing Tribal-State
Class III gaming compact does not
require approval by the Secretary if the
extension does not modify any other
terms of the compact. 25 CFR 293.5. The
Rosebud Sioux Tribe of the Rosebud
SUMMARY:
PO 00000
Frm 00043
Fmt 4703
Indian Reservation and the State of
South Dakota have signed an agreement
to extend the expiration date of their
existing Tribal-State Class III gaming
compact to April 12, 2023. This
publication provides notice of the new
expiration date of the compact.
Bryan Newland,
Assistant Secretary—Indian Affairs.
[FR Doc. 2022–24446 Filed 11–8–22; 8:45 am]
BILLING CODE 4337–15–P
DEPARTMENT OF THE INTERIOR
Office of the Secretary
[23XD4523WD; DS68664000;
DWDFO0000.000000;
DQ.QSO4A.23WD0000; OMB Control
Number 1084–0033]
Agency Information Collection
Activities; Submission to the Office of
Management and Budget for Review
and Approval; Private Rental Survey
Office of the Secretary, Office
of Acquisition and Property
Management, Interior.
ACTION: Notice of information collection;
request for comment.
AGENCY:
In accordance with the
Paperwork Reduction Act of 1995, we,
the Office of the Secretary, Office of
Budget, are proposing to renew an
information collection.
DATES: Interested persons are invited to
submit comments on or before
December 9, 2022.
ADDRESSES: Written comments and
recommendations for the proposed
information collection should be sent
within 30 days of publication of this
notice to www.reginfo.gov/public/do/
PRAMain. Find this particular
information collection by selecting
‘‘Currently under Review—Open for
Public Comments’’ or by using the
search function. Please provide a copy
of your comments to Laura Walters,
Quarters Rental Program Manager,
Interior Business Center, 7301 W
Mansfield Ave., MS D–2910, Denver,
CO 80235, or fax 303–969–6336, or by
email to laura_a_walters@ibc.doi.gov.
Please reference Office of Management
and Budget (OMB) Control Number
1084–0033 in the subject line of your
comments.
FOR FURTHER INFORMATION CONTACT: To
request additional information about
this ICR, contact Laura Walters,
Quarters Rental Program Manager,
Interior Business Center, 7301 W
Mansfield Ave., MS D–2910, Denver,
CO 80235, or fax 303–969–6336, or by
email to laura_a_walters@ibc.doi.gov.
SUMMARY:
BILLING CODE 4210–67–P
Sfmt 4703
67711
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]]>Agencies
[Federal Register Volume 87, Number 216 (Wednesday, November 9, 2022)]
[Notices]
[Pages 67709-67711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24510]
=======================================================================
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-6331-N-06]
Public Interest Phased Implementation 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.
-----------------------------------------------------------------------
SUMMARY: In accordance with the Build America, Buy America Act
(``BABA'' or ``the Act'') this notice advises that HUD is proposing a
public interest waiver to further HUD's phased implementation of the
Buy America Domestic Content Procurement Preference (``Buy America
Preference,'' or ``BAP'') for recipients of Federal Financial
Assistance (``FFA'') provided by HUD. On May 5, 2022, HUD previously
issued a separate waiver covering all FFA obligated by HUD on or before
November 14, 2022, including Community Development Block Grant
(``CDBG'') formula grants. In order to fully focus on the successful
implementation of the BAP in CDBG formula grants, one of HUD's largest
grant programs, HUD has determined that it is in the public interest to
propose a new public interest waiver of the application of the BAP for
all other FFA provided by HUD. HUD is proposing that this waiver cover
all FFA obligated by HUD during the ninety (90) day period after its
effective date except for those funds utilized in connection with the
purchase of iron or steel products in infrastructure projects funded by
CDBG formula grants obligated by HUD on or after November 15, 2022. In
addition, in the case of FFA obligated by HUD on or after November 15,
2022, but prior to the effective date of the final waiver, the waiver
will apply to all expenditures incurred on or after the date of the
final waiver, except for those funds utilized in connection with the
purchase of iron or steel products in infrastructure projects funded by
CDBG formula grants obligated by HUD on or after November 15, 2022. HUD
is also, through this waiver, soliciting specific comment on the
further phased implementation of the BAP in connection with the iron
and steel products used in other non-CDBG formula grant FFA provided by
HUD and in the full implementation of the BAP in connection with the
use of construction materials and manufactured products in all
infrastructure projects across HUD's FFA programs.
DATES: HUD published this proposed waiver on its website on November 3,
2022. Comments on the waiver proposed in this document are due on or
before November 17, 2022. HUD will consider comments received and
announce any subsequent changes to this waiver through a subsequent
notice. If issued, the waiver would be applicable to awards that are
obligated on the effective date of the waiver and eighty-nine (89) days
thereafter for a total of ninety (90) days.
ADDRESSES: Interested persons are invited to submit comments on this
public interest, 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.
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'') (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.
Thus, beginning May 14, 2022, new awards of FFA by HUD through a
program for infrastructure, and any of those newly obligated funds then
obligated by the grantee, are covered under BABA provisions of the Act,
41 U.S.C. 8301 note, unless covered by a waiver.
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
[[Page 67710]]
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, on June 1, 2022(87 FR 33193) 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.
Following the expiration of the ``General Applicability Waiver of
Build America, Buy America Provisions as Applied to Recipients of HUD
Federal Financial Assistance'' (87 FR 26219), HUD will fully implement
the BAP for purposes of the purchase of iron and steel products used in
infrastructure projects funded with Federal Financial Assistance
provided by HUD through its CDBG formula grants obligated by HUD on or
after November 15, 2022. 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 and other Federal agencies have
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, General Applicability Waiver of Buy America
Provisions
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),\1\ encourages agencies to consider ways to
provide the assistance to funding recipients that is necessary and
effective for the implementation of the BAP, including consideration of
phased implementation of BAP where appropriate.
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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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In Fiscal Year 2022, HUD grantees will receive more than $15
billion through the Department's programs where infrastructure is an
eligible activity that 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 Notices 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 America preferences. Because the potential application of
BAP mandated by the Act is new to the majority of HUD's programs and
Federal Financial Assistance (``FAA''), HUD is choosing to implement
the BAP first with respect to all iron and steel products used in
infrastructure projects funded with FFA provided by HUD through its
CDBG formula grants on or after November 15, 2022. In order to focus on
this implementation, HUD is proposing to waive the application of the
BAP in connection with all other FAA. This will provide an additional
limited period to allow for further consideration of the most efficient
methods of implementation of the BAP across the remaining HUD programs
for construction materials and manufactured products more generally.
This waiver advances BABA by reducing the administrative burden to
potential assistance recipients where the costs of uncertainty in
compliance with BABA could distract from the focus on the efficient and
effective implementation of BABA in one of HUD's largest FFA programs
and allows for broader phased implementation once further clarity and
guidance on the implementation is received. Failure to provide
recipients such flexibilities could delay the award for infrastructure
projects as grantees and funding recipients must exert considerable
effort in accounting for the sourcing for miscellaneous, low-cost
construction materials without the benefit of complete guidance on the
Act's requirements.
HUD believes that better coordination with HUD FAA recipients in
the implementation of BABA will avoid unnecessary and undue hardship.
Such a waiver will allow grantees and funding recipients to focus their
efforts on such critical projects. Proposing this waiver is not an
alternative to increasing domestic production. Rather this waiver will
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 our economic and national
security. This waiver will also allow grantees and funding recipients
to continue with projects in connection with iron and steel products
where Made in America requirements have long been contemplated--
providing greater ease of implementation for HUD's CDBG formula
grantees. Without this waiver, HUD grantee and funding recipient
participation could be impacted, such as modification of current plans.
As HUD's previous Notice advised and as supported by several
comments received during the comment period, many of the HUD's programs
that may be subject to the BAP and have previously not required
compliance with similar Buy America preferences. Because the potential
application of BAP mandated by the Act is new to the
[[Page 67711]]
majority of HUD's FFA programs, this waiver advances BABA by targeting
the initial phased implementation to a well-developed industry in
connection with infrastructure projects being undertaken by
sophisticated CDBG formula grantees. HUD is seeking comment on the
further implementation of the BAP but will focus specific attention to
the full implementation of the BAP in connection with the use of iron
and steel in infrastructure projects in other FFA programs utilizing
HUD funds within this waiver period.
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.
V. Impact of This Waiver on Other Federal Financial Assistance
No funds that have been obligated by HUD before November 14, 2022,
or during the pendency of this waiver will require compliance with the
BAP, with the exception of iron and steel products used in connection
with infrastructure projects funded through CDBG formula grants
obligated by HUD on or after November 15, 2022, or unless otherwise
required by another FFA award. Where the BAP or other BABA requirements
are made applicable to a project of a grantee or funding recipient by
another Federal agency, those requirements are not waived by this
waiver, 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 waiver period to
better understand the market and to limit the 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 waiver announced in this Notice. In
particular, HUD invites comments on the waiver of application of the
BAP for iron and steel products in connection with infrastructure
projects funded through HUD's FFA programs other than CDBG formula
grants. HUD also seeks specific comment on how it may best further
phase in the application of the BAP for all construction materials and
manufactured products in connection with CDBG formula grants and all
other HUD FFA programs. HUD invites comments on what time period would
be appropriate for purposes of achieving these various phases of
orderly implementation of the Act.
Marcia L. Fudge,
Secretary.
[FR Doc. 2022-24510 Filed 11-7-22; 11:15 am]
BILLING CODE 4210-67-P
