May 2, 2022

The Department of Housing and Urban Development (HUD) is proposing a six-month waiver of the “Buy America Domestic Content Procurement Preference” on construction materials and is soliciting comments on the information collection needs and potential burdens on recipients of federal financial assistance from HUD.  Note that HUD also proposed a parallel one-year waiver of the domestic content procurement preference specific for Tribal recipients of HUD financial assistance.

The Build America, Buy America Act (Act) – enacted in November 2021 as part of the Infrastructure Investment and Jobs Act – established a domestic content procurement preference for federal infrastructure programs.  Specifically, the Act provides that HUD must ensure that none of the funds made available for infrastructure projects may be allocated unless the agency has taken steps to ensure that the iron, steel, manufactured products, and construction materials used in a project are produced in the United States.  The Act further defines a project to include “the construction, alteration, maintenance, or repair of infrastructure in the United States.”

HUD observes that in fiscal year 2022, HUD grantees will receive more than $15 billion through its programs where infrastructure is an eligible activity and may therefore be subject to the Act’s domestic content procurement preference.  HUD anticipates that in order to ensure full compliance with the procurement preference, the agency will need to impose additional information collection requirements on recipients of federal financial assistance.  In particular, HUD expects these recipients to face additional paperwork burdens in complying with the preference and in submitting requests for product- or project-specific waivers of the preference.  Moreover, because the potential application of the domestic content procurement preference is new to the majority of HUD’s programs, HUD states that it does not have a full understanding of the impact on agency programs, nor does it have adequate information concerning the types of information necessary to demonstrate compliance with the preference or to seek waivers under the Act.

During the proposed waiver period, HUD states that it will work to prepare for the implementation of the domestic content procurement preference by: (1) assessing existing federal financial assistance processes to see where “Made in America” processes can be most efficiently added and aligned; (2) building new Made in America requirements into forthcoming funding notices,, loan programs, and other agency resources; (3) reviewing existing enforcement processes, including stewardship and oversight agreements with grantees, risk-based reviews, and compliance assessment program reviews to ensure HUD is ready to enforce Made in America standards; (4) reviewing data, information, and comments provided by grantees, industry, and other partners to further assess opportunities, challenges, and the availability of domestically-sourced construction materials; and (5) training HUD staff and adopting best practices based on interagency work.  HUD adds that it will consider shortening the period of the waiver overall, or for certain categories of products, to “rapidly encourage” domestic sourcing.

Comments are due by May 14, 2022 and can be submitted here using Docket ID FR-6331-N-01.

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