Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Notices 46783 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

[Docket No. FR–5344–N–01] 

Notice of National Exceptions to 

Section 1605 of the Recovery Act (Buy 

American Requirement) Applicable to 

Public and Indian Housing Recovery 

Act Funds 

AGENCY: Office of the Assistant 

Secretary for Public and Indian 

Housing, HUD. 

ACTION: Notice. 

SUMMARY: In accordance with the 

American Recovery and Reinvestment 

Act of 2009 (Pub. L. 111–05, approved 

February 17, 2009) (Recovery Act), and 

implementing guidance of the Office of 

Management and Budget (OMB), this 

notice advises that certain national 

exceptions to the Buy American 

requirement of the Recovery Act have 

been determined applicable for work 

using Capital Fund Recovery Formula 

and Competition (CFRFC) grant funds. 

FOR FURTHER INFORMATION CONTACT: 

Dominique G. Blom, Deputy Assistant 

Secretary for Public Housing 

Investments, Office of Public Housing 

Investments, Office of Public and Indian 

Housing, Department of Housing and 

Urban Development, 451 7th Street, 

SW., Room 4210, Washington, DC 

20410–4000, telephone 202–402–8500 

(this is not a toll-free number). Persons 

with hearing- or speech-impairments 

may access this number through TTY by 

calling the toll-free Federal Information 

Relay Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: The 

Recovery Act awarded an additional 

$4,000,000,000 for the ‘‘Public Housing 

Capital Fund.’’ Section 1605(a) of the 

Recovery Act, the ‘‘Buy American’’ 

provision, states that for Recovery Act 

funds used for a project for the 

construction, alteration, maintenance, or 

repair of a public building or public 

work, all of the iron, steel, and 

manufactured goods used in the project 

must be produced in the United States. 

Section 1605(b) of the Recovery Act 

provides certain exceptions to the Buy 

American requirement. Section 1605(b) 

provides that the Buy American 

requirement shall not apply in any case 

or category in which the head of a 

Federal department or agency finds that: 

(1) Applying the Buy American 

requirement would be inconsistent with 

the public interest; (2) iron, steel, and 

the relevant manufactured goods are not 

produced in the U.S. in sufficient and 

reasonably available quantities or of 

satisfactory quality, or (3) inclusion of 

iron, steel, and manufactured goods will 

increase the cost of the overall project 

by more than 25 percent. Section 

1605(c) provides that if the head of a 

Federal department or agency makes a 

determination pursuant to section 

1605(b), the head of the department or 

agency shall publish a detailed written 

justification in the Federal Register. 

In accordance with section 1605(c) of 

the Recovery Act and OMB’s 

implementing guidance published on 

April 23, 2009 (74 FR 18449), this notice 

advises the public that the Secretary has 

determined that certain exceptions to 

the Buy American requirement are 

applicable to work using CFRFC grant 

funds based on findings made under 

section 1605(b). The exceptions 

determined applicable, without the 

necessity of a grantee to seek an 

individual exception determination, are 

as follows: 

1. If another Federal agency (e.g., 

Department of Commerce, Department 

of Energy or Environmental Protection 

Agency) has determined that an 

exception to the Buy American 

requirement is applicable under section 

1605(b), for a project including public 

housing, HUD will accept that agency’s 

determination and permit the public 

housing agency (PHA) (HUD program 

grantee) to apply that exception for the 

remainder of HUD-assisted work in that 

project. 

2. If another HUD Program Office 

(e.g., Office of Community Planning and 

Development) has determined that an 

exception to the Buy American 

requirement is applicable under section 

1605(b) for a project, and an analysis 

supports its application to another 

request, HUD’s Office of Public and 

Indian Housing (PIH) may accept that 

determination and permit the PHA to 

apply that exception to the remainder of 

the CFRFC grant work in that project. 

3. Where the size of the CFRFC grant 

is less than $100,000 (currently the 24 

CFR part 85 simplified acquisition 

threshold), the Buy American 

requirement is not applicable. 

4. Where the size of a contract funded 

with CFRFC grant assistance is less than 

$100,000, regardless of the size of the 

PHA, the Buy American requirement is 

not applicable. 

5. For any project substantially under 

contract or under way prior to 

acceptance of CFRFC funds, the Buy 

American requirement is not applicable. 

In addition to these five national 

exceptions, there is also an existing list 

of nonavailable articles listed at 48 CFR 

25.104(a) (FAR List). The procedures to 

apply if any of those articles are 

manufactured goods needed in the 

project covered by the Buy American 

requirement are found at 48 CFR 

25.103(b)(1). See also 2 CFR 176.80. 

Additional information about these 

exceptions has been provided in the PIH 

Buy American Implementation 

Guidance, which can be found on 

HUD’s Web site at: http://www.hud.gov/ 

offices/pih/publications/notices/. 

HUD’s foremost expectation is that 

PHAs will use American iron, steel, and 

manufactured goods throughout their 

Recovery Act assisted projects. 

However, there are certain 

circumstances under which exceptions 

to the Buy American requirement will 

be appropriate in accordance with 

section 1605(b). The legislative history 

and Congressional intent expressed in 

the record for the Recovery Act make 

clear that the priority of Congress is to 

provide capital funding to projects as 

quickly as possible to create jobs, assist 

those most impacted by the recession 

and stabilize state and local government 

budgets. Further evidence of the 

urgency and the overarching 

Congressional directives in providing 

this assistance for CFRFC programs are 

the specific requirements that the 

funding is for: (1) Priority investments; 

(2) priority capital projects that can be 

awarded contracts based on bids within 

120 days from the date the funds are 

made available to the PHAs (i.e., July 

18, 2009, for Capital Fund Recovery 

Formula (CFRF) grant funds); and (3) 

PHA priority capital projects that are 

already underway or included in the 5- 

year capital fund plans required by the 

section 5A of the United States Housing 

Act of 1937 (1937 Act) (42 U.S.C. 

1437c–1). The national exceptions to the 

Buy American requirement determined 

applicable to CFRFC grants funds are all 

supportive and essential to carrying out 

these Congressional mandates and 

balanced with the interests and intent of 

the Buy American requirement. 

The Recovery Act has also imposed 

obligation and expenditure of funds 

requirements that are stricter than the 

1937 Act requirements, which generally 

provide PHAs two years to obligate 

grant funds and four years to expend 

those funds. Specifically, the Recovery 

Act requires PHAs to obligate 100 

percent of CFRF grant funds by March 

17, 2010. All unobligated funds will be 

unilaterally recaptured. PHAs must 

expend at least 60 percent of the grant 

by March 17, 2011, and if less than 60 

percent is expended, all unexpended 

funds will be unilaterally recaptured. 

PHAs must expend 100 percent of the 

grant by March 17, 2012, or all 

unexpended funds will be unilaterally 

recaptured. Extension of the obligation 

and expenditure deadlines are not 

permitted under the Recovery Act. 


cprice-sewell on DSKGBLS3C1PROD with NOTICES
46784 Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Notices 

These strict obligation and expenditure 

requirements demonstrate the financial 

and construction expediency 

requirements that the PHAs must meet 

along with the additional requirement of 

Buy American and the need for 

transparency. 

The five exception determinations 

listed above are based on a 

determination of inconsistency with 

public interest. The FAR List is based 

insufficient and not reasonably available 

quantities and of a satisfactory quality. 

At this time, HUD is not adding to the 

FAR List or creating a HUD list. HUD 

does not need to provide any additional 

justification for use of items currently 

on the FAR List of domestically 

nonavailable items at 48 CFR 25.104(a). 

If a PHA wants to use items on the FAR 

List or to have items added to the FAR 

List or to a HUD list, the PHA must 

follow the PIH Buy American 

Implementation Guidance. 

The five national exceptions 

determined applicable are based on 

public interest are necessary to: (1) 

Avoid delay in completion and 

restoration of housing for low-income 

families and the achievement of the 

Recovery Act deadlines; (2) avoid delays 

in the start of construction and 

modernization of public housing that 

will jeopardize jobs; (3) avoid the 

possibility of additional funding gaps on 

termination of certain contracts and 

price differentials cause by 

reprocurement of goods and equipment; 

(4) avoid loss of funding for critical 

projects; and (5) address current and 

emerging situations presented by PHAs. 

The national exception for PHAs where 

the size of the CFRFC grant is less than 

$100,000 will cover 30 percent of the 

PHAs (often referred to as ‘‘small 

PHAs’’) and will amount to a relatively 

small impact (approximately $52 

million of the nearly $4 billion in grant 

awards). A determination was made that 

an exception is also applicable to PHAs 

where the size of a contract funded with 

CFRFC grant assistance is less than 

$100,000 (which is currently the 24 CFR 

part 85 simplified acquisition threshold 

fixed at 41 U.S.C. 403(11)) in part 

because under 24 CFR 85.36(d)(1), these 

are small purchase procedures that are 

relatively simple and informal 

procurement methods for securing 

goods. If small purchase procedures are 

used by a PHA, price or rate quotations 

are to be obtained from at least three 

qualified sources. 

PHAs have brought to HUD’s 

attention that every public housing 

development and modernization project 

involves the use of literally thousands of 

miscellaneous, generally low-cost 

components that are essential for but 

incidental to the construction and 

modernization, and are incorporated 

into the physical structure of the 

project, such as nails, hinges, other 

hardware, electrical, plumbing and 

finishing components. These incidental 

components are subject to the Buy 

American requirement, but unlike major 

components, the country of manufacture 

and the availability of alternatives are 

not readily or reasonably identifiable 

prior to procurement in the normal 

course of construction and 

modernization of public housing. Over 

2,300 PHAs have less than 250 units in 

inventory, and many of these PHAs are 

located in rural areas or small towns. 

HUD understands that these PHAs in 

particular often have to search further in 

order to procure American-made items 

and find contractors familiar with the 

Buy American requirement. For these 

PHAs, it takes additional time to 

procure, and there are increased costs 

associated with bringing materials and 

contractors in from a great distance. 

Under the requirements of the Recovery 

Act, HUD is concerned that it could be 

disproportionate to the costs and time 

involved for the PHA or their contractor 

and would not be feasible for PHAs to 

find alternatives. In an effort to address 

this concern, HUD sought to identify the 

scope of these incidental components 

within the construction and 

modernization of public housing, 

consulted with PHAs and PHA trade 

associations and considered the number 

of ways and the number of sources of 

these components. 

Recognition of the lack of availability 

and access to resources as well as relief 

from administrative burdens are critical 

to the success of small PHAs and 

consistent with Recovery Act objectives. 

As with any new requirement, 

implementation of the Buy American 

requirement will take analysis and 

resources that are not readily available 

to small PHAs. The need for the 

expeditious and efficient use of the 

CFRFC funds balanced with the long 

established recognition of decreased 

availability of resources available to 

small PHAs clearly supports exceptions 

3 and 4 above. 

Based on the information resulting 

from this process, the determination 

was made that these exceptions were 

appropriate because compliance with 

the Buy American requirement would 

be disproportionate to the cost and time 

involved for PHAs and delay work on 

critical public housing projects and the 

jobs associated with those projects. This 

public-interest justification does not 

reach the conclusion that the inclusion 

of iron, steel, and manufactured goods 

produced in the United States will 

automatically increase the cost of the 

overall project by more than 25 percent. 

Cost is a factor in all PHA procurements 

and must be considered in accordance 

with 24 CFR part 85 and the cost 

principles at 2 CFR part 225. Cost is in 

part a factor in all of HUD’s public 

interest national exceptions. HUD has 

decided that cost-based exceptions must 

be determined on a case-by-case basis 

and submitted to HUD for review under 

the PIH’s Buy American Implementation 

Guidance. 

For additional information see 

http://www.hud.gov/offices/pih/ 

publications/notices/. 

Dated: September 4, 2009. 

Sandra B. Henriquez, 

Assistant Secretary for Public and Indian 

Housing. 

[FR Doc. E9–21958 Filed 9–10–09; 8:45 am] 

BILLING CODE 4210–67–P 

DEPARTMENT OF THE INTERIOR 

Office of the Secretary 

Request for Comments on the 

Strategic Plan Framework as Input for 

Revision and Updating of the 

Departmental Strategic Plan 

AGENCY: Office of the Secretary, Interior. 

ACTION: Notice of availability and 

request for comments. 

SUMMARY: The Department of the 

Interior is seeking public comment as 

part of its process to revise and update 

its current strategic plan. 

DATES: You must submit comments on 

or before November 10, 2009. 

ADDRESSES: You may submit comments 

by any of the following methods: 

E-mail: 

StratPlancomments@ios.doi.gov. 

FAX: 202–208–2619. 

Mail: U.S. Department of the Interior, 

Office of the Secretary—Planning and 

Performance Management, Attention: 

DOI Strategic Planning Coordinator, 

1849 C Street, NW., Mail Stop 5258, 

Washington, DC 20240–0001. 

Public Availability of Comments 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made public under certain 

circumstances. While you can ask us in 

your comment to withhold your 

personal identifying information from 

public review, we cannot guarantee that 

we will be able to do so. 


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