Public Interest Waiver of Build America, Buy America Provisions for Exigent Circumstances as Applied to Certain Recipients of HUD Federal Financial Assistance, 76505-76508 [2022-27095]
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Federal Register / Vol. 87, No. 239 / Wednesday, December 14, 2022 / Notices
projects, and a higher cap on the total
cost under the De Minimis waiver. A
similar number of commenters
requested that the limits be lowered to
afford more opportunities for the
application of the BAP. HUD
appreciates the comments from both
perspectives, but believes that, as an
initial matter, the limits proposed in the
initial waiver are set at the appropriate
levels to balance the intent of the Act
with the public interest in the continued
efficiency and success of infrastructure
projects funded through HUD’s
affordable housing and community
development programs. HUD declines to
make changes to the amounts
represented by these limits at this time,
but is clarifying that all FFA, whether
received by HUD or from another
Federal source, in connection with
infrastructure projects must be used to
calculate the total, cumulative FFA in a
single project to determine the
applicability of a Small Grants waiver.
HUD will continue to monitor the
implementation of the BAP across its
programs to ensure the most robust
application possible in light of the
important public interests discussed
above.
Several proponents of the waiver
requested that HUD provide greater
clarity regarding the implementation of
the BAP and the appropriate application
of this waiver. HUD appreciates these
comments and will continue to work to
develop robust guidance regarding the
implementation of the BAP across its
programs. HUD remains committed to
reviewing the waivers it issues every
five years or more often if necessary and
appropriate.
A few comments were received from
manufacturers and trade organizations
that opposed portions of the proposed
waiver because they would prefer a
more narrowly tailored waiver, if a
waiver is issued at all. These
commenters expressed confusion over
the reference to Minor Components in
the proposed waiver. HUD agrees that
use of the term Minor Components did
not accurately reflect the waiver HUD
was proposing. As a result, the waiver
issued by HUD and announced via this
final notice deletes all references to
Minor Components and instead focuses
on the true intent of the waiver—
coverage for small grants and a De
Minimis waiver.
Additionally, several of the opponents
expressed concern that the waiver could
give rise to a loophole to avoid
compliance with the BAP. HUD
appreciates the comments but believes
that the waiver is sufficiently narrowly
tailored with protections in place to
avoid artificial manipulation of project
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size and that the risk of abuse is
outweighed by the need to provide this
important flexibility for Small Grants
and the De Minimis portions of larger
infrastructure projects. HUD expects the
future guidance and technical assistance
it provides to grantees regarding the
implementation of the Act to further
address any concerns that the scope or
applicability of this waiver will be
misconstrued by grantees. HUD will not
allow the use of the waiver in any
artificial or contrived circumstances
designed to avoid the proper application
of the BAP requirements. HUD has
therefore declined to modify the waiver
at this time, beyond the clarification of
the use of the cumulative total of all
FFA funding the infrastructure project
in determining application of this
waiver. As previously indicated, HUD
will continue to monitor the usage of
the waiver so it may swiftly address any
potential confusion concerning the
proper application of the waiver.
The complexities of applying the BAP
in connection with Small Grants and De
Minimis portions of projects are such
that the Agency maintains, for the
reasons outlined herein, the public
interest necessitates this waiver of the
BAP. HUD will continue its work to
assess compliance alternatives and
options best suited to enable grantees
and funding recipients to more
efficiently and effectively implement
the BAP in connection with Small
Grants and De Minimis portions of
infrastructure projects and will
reevaluate this waiver in five years or
sooner as appropriate. Additionally,
HUD will continue to assess the need
for and provide additional guidance for
funding recipients and grantees to
ensure the appropriate implementation
of the BAP in its programs. At this time,
however, HUD has issued this Small
Grant and De Minimis waiver with the
minimal substantive changes described
herein and with other minor,
inconsequential grammatical revisions.
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 FFA.
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76505
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.i 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.
Marcia L. Fudge,
Secretary.
[FR Doc. 2022–27097 Filed 12–13–22; 8:45 am]
BILLING CODE 4210–67–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
[Docket No. FR–6331–N–05A]
Public Interest Waiver of Build
America, Buy America Provisions for
Exigent Circumstances as Applied to
Certain Recipients of HUD Federal
Financial Assistance
Office of the Secretary, U.S.
Department of Housing and Urban
Development (HUD).
ACTION: Final notice.
AGENCY:
In accordance with the Build
America, Buy America Act (‘‘BABA’’ or
‘‘the Act’’) this notice advises that HUD
is issuing 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 (‘‘FFA’’)
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 departmentwide waiver
for exigent circumstances is in the
public interest. The waiver will assist
HUD and its grantees and funding
SUMMARY:
i 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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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: As required under section 70914
of the Act, HUD published this
proposed waiver on its website on
October 31, 2022, for public comment.
In addition, HUD published the
proposed waiver in the Federal
Register. Comments on the proposed
waiver set out in this document were
due on or before November 15, 2022.
Through this Final Notice, HUD is
announcing that it has issued this
waiver effective November 23, 2022.
This waiver will remain effective for a
period of five years or such shorter time
period as HUD may announce via
notice.
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). 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,
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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 FFA 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.
www.hud.gov/program_offices/general_
counsel/BABA.
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 FFA 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. HUD published
a notice proposing the waiver that is
being finalized through this notice on its
website on October 31, 2022, and via the
Federal Register. Additional details on
HUD’s implementation of the BABA
requirements can be found at https://
IV. Public Interest in This General
Applicability Waiver of Buy America
Provisions
HUD is issuing 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.
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 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 FFA 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.i Such a waiver will
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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.
i 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
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allow HUD grantees and funding
recipients to focus their efforts on such
critical projects. Issuing this waiver is
not an alternative to increasing domestic
production. 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, delays
may occur to critical activities to protect
life, safety, and property, which may
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
infrastructure project without delay is
necessary to protect life, safety or
provide necessary security to residents
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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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. Consideration of Public Comments
on the Waiver
As required under section 70914 of
the Act, HUD solicited comment from
the public on the public interest waiver
announced in this notice on its website
and then published the proposed waiver
in the Federal Register. A total of 11
comments were received in response to
the proposed waiver. HUD thoroughly
reviewed and considered each of the
comments in determining to move
forward with the issuance of this waiver
as published in this final notice. The
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76507
comments generally favored an exigent
circumstances waiver as proposed.
A few commenters expressed support
for a broader waiver and greater
deference to the determinations of
grantees in terms of projects that fall
within the scope of exigent
circumstances. Several proponents of
the waiver requested that HUD provide
greater clarity regarding the
implementation of the BAP and the
appropriate application of this waiver.
HUD appreciates these comments and
will continue to work to develop robust
guidance regarding the implementation
of the BAP across its programs. HUD
remains committed to reviewing the
waivers it issues every five years or
more often if necessary and appropriate.
A few comments were received from
manufacturers and trade organizations
that opposed portions of the proposed
waiver because they would prefer a
more narrowly tailored waiver, if a
waiver is issued at all. Several of these
comments expressed concern that the
waiver would give rise to a loophole to
avoid compliance with the BAP. HUD
appreciates the comments but believes
that the waiver is sufficiently narrowly
tailored to specific actions necessary to
protect life, safety and property from
imminent threats that the risk of abuse
is outweighed by the need to provide
flexibility to act swiftly in exigent
circumstances.
HUD expects the future guidance and
technical assistance it provides to
grantees regarding the implementation
of the Act to address any concerns that
the scope or applicability of this waiver
will be misconstrued by grantees. HUD
will not allow the use of the waiver in
any artificial or contrived circumstances
designed to avoid the proper application
of the BAP requirements. HUD has
therefore declined to modify the waiver
at this time, but will continue to
monitor the usage of the waiver so it
may swiftly address any future
confusion over the proper application of
the waiver. The complexities of
applying the BAP in exigent
circumstances where there is a risk
posed to life, safety, or property are
such that HUD maintains, for the
reasons outlined herein, the public
interest necessitates this waiver of the
BAP.
HUD will continue its work to assess
compliance alternatives and options
best suited to enable grantees and
funding recipients to swiftly address
projects necessitated by exigent
circumstances and will reevaluate this
waiver in five years or sooner as
appropriate. Additionally, HUD will
continue to assess the need for and
provide additional guidance for funding
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recipients and grantees to ensure the
appropriate implementation of the BAP
in its programs. At this time, HUD is
issuing, without substantive change
other than minor, inconsequential
grammatical revisions this Exigent
Circumstances Waiver via this final
notice.
DEPARTMENT OF THE INTERIOR
VI. Impact of This Waiver on Other
Federal Financial Assistance
AGENCY:
VII. 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.ii 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.
Marcia L. Fudge,
Secretary.
[FR Doc. 2022–27095 Filed 12–13–22; 8:45 am]
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BILLING CODE 4210–67–P
ii 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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[2231A2100DD/AAKC001030/
A0A501010.999900]
Advisory Board of Exceptional
Children
Bureau of Indian Affairs,
Interior.
ACTION: Notice of meeting.
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.
VerDate Sep<11>2014
Bureau of Indian Affairs
The Bureau of Indian
Education (BIE) is announcing that the
Advisory Board for Exceptional
Children will hold a two-day in-person
and online meeting. The purpose of the
meeting is to meet the mandates of the
Individuals with Disabilities Education
Act of 2004 (IDEA) for Indian children
with disabilities. Due to the COVID–19
pandemic and for the safety of all
individuals, an online meeting option is
provided for those who cannot attend
in-person.
DATES: The BIE Advisory Board meeting
will be held Thursday, January 19, 2023
from 8 a.m. to 4:30 p.m., Mountain
Standard Time (MST) and Friday,
January 20, 2023 from 8 a.m. to 4:30
p.m., Mountain Standard Time (MST).
ADDRESSES:
• Meeting: All Advisory Board
activities and meetings will be
conducted in-person and online. The
onsite meeting location will be at the
Hyatt Place Hotel located at 3535 W
Chandler Blvd., Chandler, AZ 85226.
See the SUPPLEMENTARY INFORMATION
section of this notice for information on
how to join the meeting.
• Comments: Public comments can be
emailed to the DFO at Jennifer.davis@
bie.edu; or faxed to (602) 265–0293
Attention: Jennifer Davis, DFO; or
mailed or hand delivered to the Bureau
of Indian Education, Attention: Jennifer
Davis, DFO, 2600 N Central Ave., 12th
Floor, Suite 250, Phoenix, AZ 85004.
FOR FURTHER INFORMATION CONTACT:
Jennifer Davis, Designated Federal
Officer, Bureau of Indian Education,
2600 N Central Ave., 12th Floor, Suite
250, Phoenix, AZ 85004, Jennifer.davis@
bie.edu, or mobile phone (202) 860–
7845.
Please make requests in advance for
sign language interpreter services,
assistive listening devices, or other
reasonable accommodations at least
seven (7) business days prior to the
meeting to give the Department of the
Interior sufficient time to process your
request. All reasonable accommodation
requests are managed on a case-by-case
basis.
Individuals in the United States who
are deaf, deafblind, hard of hearing, or
SUMMARY:
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have a speech disability may dial 711
(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: In
accordance with the Federal Advisory
Committee Act, the BIE is announcing
the Advisory Board will hold its next
meeting in-person and online. The
Advisory Board was established under
the Individuals with Disabilities Act of
2004 (20 U.S.C. 1400 et seq.) to advise
the Secretary of the Interior, through the
Assistant Secretary-Indian Affairs, on
the needs of Indian children with
disabilities. All meetings, including
virtual sessions, are open to the public
in their entirety.
Agenda
The following agenda items will be
for the January 19, 2023 and January 20,
2023 meeting. The reports are regarding
special education topics from the:
• BIE Central Office.
• BIE Associate Deputy Director
regions regarding Special Education
updates for Bureau Operated Schools,
Navajo Schools, and Tribally Controlled
Schools.
• BIE’s State Performance Plan/
Annual Performance Report (SPP/
APR)—Indicator 8, Parent Involvement
target setting.
• Haskell Indian Nations University
and the Southwest Indian Polytechnic
Institute—to address challenges of
preparing educators for schools serving
significant numbers of Native American
students in Bureau funded schools.
• BIE Human Resource Department—
status of current vacant educator
positions and turnover as compared to
last year for educator positions at the
school level, and how the BIE recruits
and retains personnel to fill position
vacancies.
• BIE/Division of Performance and
Accountability (DPA)/Special Education
Program Updates.
• Four Public Commenting Sessions
will be provided during both meeting
days.
Æ On Thursday, January 19, 2022 two
sessions (15 minutes each) will be
provided, 11:15 a.m. to 11:30 a.m. MST
and 1 p.m. to 1:15 p.m. MST. Public
comments can be provided via webinar
or telephone conference call. Please use
the online access codes as listed below.
Æ On Friday, January 20, 2022 two
sessions (15 minutes each) will be
provided, 11:15 a.m. to 11:30 a.m. MST
and 1 p.m. to 1:15 p.m. MST. Public
comments can be provided during the
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]]>Agencies
[Federal Register Volume 87, Number 239 (Wednesday, December 14, 2022)]
[Notices]
[Pages 76505-76508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27095]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-6331-N-05A]
Public Interest Waiver of Build America, Buy America Provisions
for Exigent Circumstances 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: Final notice.
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SUMMARY: In accordance with the Build America, Buy America Act
(``BABA'' or ``the Act'') this notice advises that HUD is issuing 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 (``FFA'')
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
departmentwide waiver for exigent circumstances is in the public
interest. The waiver will assist HUD and its grantees and funding
[[Page 76506]]
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: As required under section 70914 of the Act, HUD published this
proposed waiver on its website on October 31, 2022, for public comment.
In addition, HUD published the proposed waiver in the Federal Register.
Comments on the proposed waiver set out in this document were due on or
before November 15, 2022. Through this Final Notice, HUD is announcing
that it has issued this waiver effective November 23, 2022. This waiver
will remain effective for a period of five years or such shorter time
period as HUD may announce via notice.
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 FFA 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
FFA 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. HUD published a notice proposing the waiver that
is being finalized through this notice on its website on October 31,
2022, and via the Federal Register. 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 issuing 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. 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 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 FFA
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.\i\ Such a waiver will
[[Page 76507]]
allow HUD grantees and funding recipients to focus their efforts on
such critical projects. Issuing this waiver is not an alternative to
increasing domestic production. 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, delays
may occur to critical activities to protect life, safety, and property,
which may negatively impact the most vulnerable Americans HUD seeks to
serve.
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\i\ 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 infrastructure project 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. Consideration of Public Comments on the Waiver
As required under section 70914 of the Act, HUD solicited comment
from the public on the public interest waiver announced in this notice
on its website and then published the proposed waiver in the Federal
Register. A total of 11 comments were received in response to the
proposed waiver. HUD thoroughly reviewed and considered each of the
comments in determining to move forward with the issuance of this
waiver as published in this final notice. The comments generally
favored an exigent circumstances waiver as proposed.
A few commenters expressed support for a broader waiver and greater
deference to the determinations of grantees in terms of projects that
fall within the scope of exigent circumstances. Several proponents of
the waiver requested that HUD provide greater clarity regarding the
implementation of the BAP and the appropriate application of this
waiver. HUD appreciates these comments and will continue to work to
develop robust guidance regarding the implementation of the BAP across
its programs. HUD remains committed to reviewing the waivers it issues
every five years or more often if necessary and appropriate.
A few comments were received from manufacturers and trade
organizations that opposed portions of the proposed waiver because they
would prefer a more narrowly tailored waiver, if a waiver is issued at
all. Several of these comments expressed concern that the waiver would
give rise to a loophole to avoid compliance with the BAP. HUD
appreciates the comments but believes that the waiver is sufficiently
narrowly tailored to specific actions necessary to protect life, safety
and property from imminent threats that the risk of abuse is outweighed
by the need to provide flexibility to act swiftly in exigent
circumstances.
HUD expects the future guidance and technical assistance it
provides to grantees regarding the implementation of the Act to address
any concerns that the scope or applicability of this waiver will be
misconstrued by grantees. HUD will not allow the use of the waiver in
any artificial or contrived circumstances designed to avoid the proper
application of the BAP requirements. HUD has therefore declined to
modify the waiver at this time, but will continue to monitor the usage
of the waiver so it may swiftly address any future confusion over the
proper application of the waiver. The complexities of applying the BAP
in exigent circumstances where there is a risk posed to life, safety,
or property are such that HUD maintains, for the reasons outlined
herein, the public interest necessitates this waiver of the BAP.
HUD will continue its work to assess compliance alternatives and
options best suited to enable grantees and funding recipients to
swiftly address projects necessitated by exigent circumstances and will
reevaluate this waiver in five years or sooner as appropriate.
Additionally, HUD will continue to assess the need for and provide
additional guidance for funding
[[Page 76508]]
recipients and grantees to ensure the appropriate implementation of the
BAP in its programs. At this time, HUD is issuing, without substantive
change other than minor, inconsequential grammatical revisions this
Exigent Circumstances Waiver via this final notice.
VI. 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.
VII. 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.\ii\ 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.
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\ii\ 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.
Marcia L. Fudge,
Secretary.
[FR Doc. 2022-27095 Filed 12-13-22; 8:45 am]
BILLING CODE 4210-67-P
