[Federal Register Volume 87, Number 85 (Tuesday, May 3, 2022)]
[Pages 26221-26223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09511]



[Docket No. FR-6331-N-02]

General Applicability Waiver of Build America, Buy America 
Provisions as Applied to Tribal Recipients of HUD Federal Financial 

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, this 
notice advises that HUD is proposing a general applicability waiver for 
one year to the Buy America Domestic Content Procurement Preference 
(``Buy America Preference,'' or ``BAP'') as applied to Federal 
Financial Assistance provided to Tribes, Tribally Designated Housing 
Entities (TDHEs), and other Tribal Entities. In accordance with the 
Act, HUD has found that this general applicability waiver is in the 
public interest, as it provides the Department with the opportunity to 
first engage in consultation as described in HUD's Tribal Government-
to-Government Consultation Policy, consistent with President Biden's 
``Tribal Consultation and Strengthening Nation-to-Nation 
Relationships'' Memorandum regarding the potential application of BAP 
to such entities.

DATES: Comments on the proposed waiver set out in this document are due 
on or before May 14, 2022. This waiver is effective for one year after 
May 14, 2022, unless, after reviewing any comments, HUD publishes a 
subsequent notice in the Federal Register explaining any changes to its 
determination to issue the waiver.

ADDRESSES: Interested persons are invited to submit comments on the

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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 
    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). Individuals with speech or hearing impairments may access 
this number via TTY by calling the Federal Information Relay Service at 
(800) 877-8339 (this is a toll-free number). Copies of all submissions 
are available for inspection and downloading at www.regulations.gov.

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. HUD encourages submission of questions 
about this document be sent to [email protected].


I. Build America, Buy America

    The Build America, Buy America Act (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.

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 has produced a report that identifies and evaluates all of 
HUD's Federal Financial Assistance programs with potentially eligible 
uses of funds that include infrastructure as defined by the Act to 
determine which programs would be in compliance with the BAP and which 
would be considered inconsistent with section 70914 of the Act and thus 
``deficient'' as defined by section 70913(c) of the Act. The report was 
submitted to Congress and the Office of Management and Budget (OMB) and 
published in the Federal Register within 60 days after the date of 
enactment of the Act, on January 19, 2022. Specifically, HUD published 
the required report in a notice entitled ``Identification of Federal 
Financial Assistance Infrastructure Programs Subject to the Build 
America, Buy America Provisions of the Infrastructure Investment and 
Jobs Act'' in compliance with section 70913. 87 FR 2894. In the report, 
HUD erred on the side of over-inclusiveness in accordance with OMB 
guidance, finding that none of HUD's discretionary funding programs 
reviewed to date fully meet the BAP requirements outlined in section 
70914 of the Act and are considered ``deficient'' under the definition 
in section 70913(c). Since issuing the report, HUD has held regular 
meetings with Departmental offices and consulted administrative and 
economic data to plan to implement the Act.

III. Waivers

    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. Information on this waiver may be 
found at the web page at this link: https://www.hud.gov/program_offices/general_counsel/BABA.

IV. Public Interest in a General Applicability Waiver of Buy America 
Provisions for Tribes, TDHEs, and Other Tribal Entities

    In this notice, HUD is seeking comment on a general applicability 
waiver of the BAP to HUD's Federal Financial Assistance awards to 
provide the Department with sufficient time to comply with HUD's Tribal 
consultation process. HUD's Tribal Government-to-Government 
Consultation Policy \1\ was adopted in compliance with Executive Order 
13175, ``Consultation with Indian Tribal Governments,'' and outlines 
the internal procedures and principles HUD must follow when 
communicating and coordinating on HUD programs and activities that 
affect Native American Tribes. HUD's Tribal consultation policy 
recognizes the right of Tribes to self-government and facilitates 
Tribal participation and input in HUD's implementation of programs and 
Federal financial assistance directed to Tribal communities.

    \1\ https://www.hud.gov/program_offices/public_indian_housing/ih/regs/govtogov_tcp. See also 81 FR 40893.

    As HUD's previous Federal Register Notice advised, many of the 
Department's programs will be subject to the BAP and have previously 
not required compliance with similar Buy American preferences. In 
fiscal year 2022, Tribes, TDHEs, and other Tribal Entities will receive 
$1 billion through the Department's programs where infrastructure is an 
eligible activity, and

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may be subject to the BAP. HUD believes that full compliance with the 
BAP will create ongoing demand for domestically produced products and 
deepen domestic supply chains. Because the potential application of BAP 
mandated by the Act would be new to the majority of HUD's programs and 
Federal Financial Assistance, HUD has not had the benefit of engaging 
in consultation pursuant to its Tribal Consultation policy concerning 
the application of the BAP to Tribes, TDHEs, and other Tribal Entities. 
Because of the significance and potentially wide scope of new 
requirements necessary to demonstrate compliance with BAP or to seek 
waivers of BAP for specific products or projects, it is imperative that 
HUD take time to engage in Tribal consultation and then fully consider 
information gathered through such consultation in determining how best 
to ensure compliance with the Act in connection with Federal Financial 
Assistance awards to Tribes, TDHEs, and other Tribal Entities. HUD 
believes that the Tribal consultation process is key to the successful 
implementation of the BAP across its covered Federal Financial 
Assistance programs funding infrastructure projects and that a full and 
meaningful Tribal consultation process will allow HUD to determine the 
potential impact of the Act's Buy America Preference on Tribal 
governments and communities and will inform a tailored implementation 
for Tribal recipients that recognizes the sovereignty and unique status 
of Tribal governments. Therefore, HUD has determined that it would be 
contrary to the public's interest to apply the BAP prior to completion 
of these Tribal consultation processes. HUD is hereby waiving the 
application of the BAP to its Federal Financial Assistance awards to 
Tribes, TDHEs, and other Tribal Entities obligated for the duration of 
this waiver to allow sufficient time for completion of the Tribal 
consultation processes regarding how BAP should be applied to Tribes, 
TDHEs, and other Tribal Entities. HUD may choose to consult with Tribes 
in coordination with other Federal agencies that also fund Tribal 
infrastructure projects.

V. 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. 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.

VI. Limited Duration of the Waiver

    HUD remains committed to the successful implementation of the 
important BAP across its programs providing covered Federal Financial 
Assistance for infrastructure projects, recognizing the unique 
relationship it has with Tribes, TDHEs, and other Tribal Entities 
receiving HUD Federal Financial Assistance for infrastructure projects. 
HUD is committed to engaging in a timely consultation process as noted 
    This waiver is effective as of May 14, 2022, and will remain in 
effect for all Federal Financial Assistance for infrastructure projects 
obligated to Tribes, TDHEs, and other Tribal Entities for one year, or 
until HUD publishes a notice extending the waiver or a final notice 
confirming the completion of HUD's Tribal consultation process and 
announcing the termination of this general applicability waiver.

VII. Solicitation of Comments

    As required under Section 70914 of the Act, HUD is soliciting 
comment from the public on the waiver. Please refer to the DATES and 
ADDRESSES sections of this notice for information on submission of 

Marcia L. Fudge,
[FR Doc. 2022-09511 Filed 4-29-22; 11:15 am]