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HAC Concerned about Buy America Requirements

HAC Comments to USDA, July 2022

On July 29, the Housing Assistance Council (HAC) submitted comments to the U.S. Department of Agriculture (USDA), which proposed to establish waivers from Buy America requirements for purchases of de minimis, small grants, and minor components of infrastructure projects.

Key Takeaways

  • Housing and community facilities should not be considered public infrastructure under the Build America, Buy America Act.
  • If housing and community facilities are considered public infrastructure, it would be in the public interest to waive the Buy America preference for USDA’s programs to finance these construction projects so that scarce funds and staff resources can be devoted to addressing the current housing crisis.
  • Waivers for purchases of de minimis, small grants, and minor components of infrastructure projects would also be in the public interest.

HAC Comments to HUD, July 2022

HAC expressed concern about the impact of “Buy America” requirements on affordable housing in comments it submitted to the U.S. Department of Housing and Urban Development (HUD) on July 15, 2022.

Key Takeaways

  • Buy America preferences should not apply to assisted housing. HUD’s priority should be to address the affordable housing crisis. Furthermore, the law defines infrastructure as projects that benefit the general public, while assisted housing is available to only a subset of the general population.
  • HUD should not apply Buy America preferences to owner-occupied housing because the Office of Management and Budget has specifically stated that private homes are not considered to be infrastructure.
  • HUD should not apply Buy America preferences when HUD assistance is used for infrastructure that is built solely to support affordable housing, as is the case with the Self-Help Homeownership Opportunity Program (SHOP).
  • HUD should not apply Buy America preferences to housing that receives less than $250,000 in federal funding, to developments with fewer than eight units, or to situations when HUD funding covers only a small portion of the per unit development cost.
  • HUD should issue expedited waivers for materials that experience price spikes.
  • HUD should provide guidance to help reduce administrative burdens on entities that receive HUD funding.

Build America, Buy America

HUD, the U.S. Department of Agriculture (USDA), and other federal agencies are subject to a “Build America, Buy America” (BABA) requirement in the Infrastructure Investment and Jobs Act of 2021, which mandates that iron, steel, manufactured products, and construction materials used in infrastructure projects be American made. The provision applies to most federally funded infrastructure projects; it is not limited to projects funded through the 2021 Act.

Any preferences for American-made products that were in effect before the Infrastructure Act passed remain in place.

Federal agencies were required to publish initial lists showing which of their programs could be subject to the Buy America preference. The Office of Management and Budget issued guidance for federal agencies regarding compliance and set up a website to track agency requests for waivers.

HUD Implementation

On June 1, HUD requested public comment to help implement BABA for its programs. It asked questions such as what HUD-financed projects might fall under exemptions from the preference, how materials are currently sourced, and more. It also asked what HUD programs might be considered to fund infrastructure in addition to those on its initial list, which includes HOME, the Community Development Block Grant program, and SHOP.

The deadline for comments was later extended to July 15.

HUD has moved to waive the buy America requirement while the department works on implementing it. HUD announced it was providing two waivers, both effective on May 14 (the statutory deadline for implementation) unless it issued a later announcement changing the date. HUD’s general waiver is effective for six months. Its waiver for Tribal recipients of HUD funds lasts for one year.

USDA Implementation

USDA did not include any of its Rural Development agency’s housing or community facilities programs on its initial list of infrastructure programs, which focuses instead on utilities and broadband programs. In a recent request to OMB, however, RD did include housing and CF along with others on a list of programs it intends to evaluate under the new law.

USDA Rural Development, like HUD, hopes to delay the requirements’ effectiveness temporarily. It asked OMB to approve a waiver that would last six months after the date of approval.

Treasury Implementation

The Treasury Department’s list of programs that may be subject to BABA’s requirements does not include any Community Development Financial Institution Fund programs. It does include the Homeowner Assistance Fund, a program intended to help homeowners impacted by the coronavirus pandemic, and the Coronavirus State and Local Fiscal Recovery Funds programs, which help state, local, and Tribal governments and can be used for housing.

 

Policy News from the Administration

Updated – Infrastructure Proposal Includes Housing, Broadband and a new Rural Partnership Program

UPDATED March 31, 2021, 6:00 pm – The Biden administration released a sweeping infrastructure proposal today that includes both housing and rural economic development. Titled “The American Jobs Plan,” the proposal includes a wide array of subjects.

Rural, tribal and underserved areas are mentioned repeatedly in the White House’s fact sheet summarizing the plan, including in the housing section. HAC supports the inclusion of increased rural housing resources in the infrastructure plan, especially around USDA multifamily preservation and capacity building.

HOUSING

Acknowledging the severe shortage of affordable housing options in the United States, the White House would invest $213 billion to produce, preserve and retrofit affordable homes, including 500,000 for low- and middle-income homebuyers. The summary does not indicate how most of these funds would be divided among existing and new programs, except for $40 billion for public housing capital needs.

The proposal would:

  • “Produce, preserve, and retrofit more than a million affordable, resilient, accessible, energy efficient, and electrified housing units. Through targeted tax credits, formula funding, grants, and project-based rental assistance, President Biden’s plan will extend affordable housing rental opportunities to underserved communities nationwide, including rural and tribal areas.
  • “Build and rehabilitate more than 500,000 homes for low- and middle-income homebuyers. President Biden is calling on Congress to take immediate steps to spur the construction and rehabilitation of homes for underserved communities. Specifically, he is calling on Congress to pass the innovative, bipartisan Neighborhood Homes Investment Act (NHIA). Offering $20 billion worth of NHIA tax credits over the next five years will result in approximately 500,000 homes built or rehabilitated, creating a pathway for more families to buy a home and start building wealth.
  • “Eliminate exclusionary zoning and harmful land use policies. For decades, exclusionary zoning laws – like minimum lot sizes, mandatory parking requirements, and prohibitions on multifamily housing – have inflated housing and construction costs and locked families out of areas with more opportunities. President Biden is calling on Congress to enact an innovative, new competitive grant program that awards flexible and attractive funding to jurisdictions that take concrete steps to eliminate such needless barriers to producing affordable housing.
  • “Address longstanding public housing capital needs. Years of disinvestment have left our public housing in disrepair. President Biden is calling on Congress to invest $40 billion to improve the infrastructure of the public housing system in America. This funding will address critical life-safety concerns, mitigate imminent hazards to residents, and undertake energy efficiency measures which will significantly reduce ongoing operating expenses. These improvements will disproportionately benefit women, people of color, and people with disabilities.
  • “Put union building trade workers to work upgrading homes and businesses to save families money. President Biden’s plan will upgrade homes through block grant programs, the Weatherization Assistance Program, and by extending and expanding home and commercial efficiency tax credits. President Biden’s plan also will establish a $27 billion Clean Energy and Sustainability Accelerator to mobilize private investment into distributed energy resources; retrofits of residential, commercial and municipal buildings; and clean transportation. These investments have a particular focus on disadvantaged communities that have not yet benefited from clean energy investments.”
RURAL PARTNERSHIP PROGRAM

The administration proposes a new $5 billion Rural Partnership Program “to help rural regions, including Tribal Nations, build on their unique assets and realize their vision for inclusive community and economic development. This program will empower rural regions by supporting locally-led planning and capacity building efforts, and providing flexible funding to meet critical needs.”

BROADBAND

The proposal calls for building high-speed broadband infrastructure to reach everyone in the country. It would prioritize support for broadband networks owned, operated by or affiliated with local governments, nonprofits and co-operatives because those providers feel “less pressure to turn profits and [have] a commitment to serving entire communities.” It would set aside funds for broadband infrastructure on tribal lands and would consult tribal nations in program administration.

RACIAL JUSTICE

The White House summary refers in several places to racial equity and the need to remedy past discrimination. It notes, for example, that low-income people and people of color are more likely than others to be affected by natural disasters and more likely to lack broadband internet access. It “targets 40 percent of the benefits of climate and clean infrastructure investments to disadvantaged communities.”

WATER AND WASTEWATER

The plan intends to “upgrade and modernize America’s drinking water, wastewater, and stormwater systems, tackle new contaminants, and support clean water infrastructure across rural America. Aging water systems threaten public health in thousands of communities nationwide. President Biden will modernize these systems by scaling up existing, successful programs, including by providing $56 billion in grants and low-cost flexible loans to states, Tribes, territories, and disadvantaged communities across the country. President Biden’s plan also provides $10 billion in funding to monitor and remediate PFAS (per- and polyfluoroalkyl substances) in drinking water and to invest in rural small water systems and household well and wastewater systems, including drainage fields.”