[Federal Register Volume 89, Number 97 (Friday, May 17, 2024)]
[Notices]
[Pages 43424-43427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10860]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

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


Extension of Public Interest, General Applicability Tribal 
Consultation Waiver of Build America, Buy America Provisions as Applied 
to Tribal Recipients of HUD Federal Financial Assistance

AGENCY: Office of the Secretary, Department of Housing and Urban 
Development (HUD or the Department).

ACTION: 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 proposing an extension to the 
previously issued public interest, general applicability Tribal 
Consultation waiver until September 30, 2024 of the Build America, Buy 
America Act (BABA) Domestic Content Procurement Preference (the Buy 
America Preference or the BAP) as applied to Federal Financial 
Assistance (FFA) provided to Tribes, Tribally Designated Housing 
Entities (TDHEs), and other Tribal Entities (hereinafter collectively, 
Tribal Recipients). This proposed waiver extension is critical in 
keeping with the Federal Government's commitment to consult with Tribes 
and build Tribal capacity as established through Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments, before 
applying the Buy America preference to programs that affect Tribal 
communities.

DATES: HUD published this proposed waiver extension on its website on 
May 10, 2024. Comments on the proposed waiver set out in this document 
are due on or before June 17, 2024. HUD will consider comments received 
and announce any formal adoption of this proposed waiver extension 
through a subsequent notice. If made final, the waiver extension would 
apply to awards obligated or incrementally funded on or after the 
effective date of the waiver extension until September 30, 2024. In the 
case of awards obligated prior to the effective date, the proposed 
waiver extension would apply to expenditures on or after the effective 
date of the waiver extension.

ADDRESSES: Interested persons are invited to submit comments on the 
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.

[[Page 43425]]

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 
accepted.
    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).
    Copies of all submissions are available for inspection and 
downloading at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Faith Rogers, Department of Housing 
and Urban Development, 451 Seventh Street SW, Room 10126, 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 BuildAmerica 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Build America, Buy America

    The Build America, Buy America Act was enacted on November 15, 
2021, as part of the Infrastructure Investment and Jobs Act (IIJA) 
(Pub. L. 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 HUD FFA, and any of those funds 
newly obligated by HUD then obligated by the grantee for infrastructure 
projects, are covered under BABA provisions of the Act, 41 U.S.C. 8301 
note, unless covered by a waiver.

II. HUD's Progress in Implementation of the Act Generally

    Since the enactment of the Act, HUD has worked diligently to 
develop a plan to fully implement the BAP across its FFA programs 
awarding funds to non-Tribal Recipients. HUD understands that advancing 
Made in America objectives is a continuous effort and believes setting 
forth a transparent schedule of future implementation in those programs 
provides industry partners and non-Tribal Recipients with the time and 
notice necessary to efficiently and effectively implement the BAP. HUD 
has announced detailed plans for the implementation of the new BAP 
requirements in connection with its award of FFA to non-Tribal 
Recipients in a manner designed to maximize coordination and 
collaboration to support long-term investments in domestic production. 
HUD continues its efforts to implement the Act in those programs 
consistent with the guidance and requirements of the Made in America 
Office of the Office of Management and Budget, including guidance 
concerning appropriate compliance with the BAP.

III. Waivers

    Under section 70914(b), HUD and other Federal agencies have 
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 section 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. Pursuant to section 70914(d)(2), when seeking to extend a waiver 
of general applicability, HUD is required to provide for a public 
comment period of not less than 30 days on the continued need such 
waiver.
    In order to ensure orderly implementation of the BAP across HUD's 
FFA programs awarding funds to non-Tribal Recipients, HUD has provided 
public interest, general applicability phased implementation waivers 
and announced a corresponding implementation plan for all non-Tribal 
Recipients. As part of those efforts, HUD has published two general 
applicability, public interest waivers covering Exigent Circumstances 
and De Minimis and Small Grants, which can be found at https://www.hud.gov/program_offices/general_counsel/build_america_buy_america/waiver. Additionally, HUD previously published two general 
applicability, public interest waivers of the BAP in connection with 
FFA provided to Tribal Recipients \1\ through May 22, 2024, to provide 
the agency with sufficient time to complete the Tribal consultation 
process regarding implementation of the BAP in connection with 
infrastructure projects, both generally and specifically in connection 
with FFA received from HUD. This proposed waiver extension is critical 
in keeping with the Federal Government's commitment to follow 
consultation policies established through Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments, before

[[Page 43426]]

applying the Buy America Preference to programs that affect Tribes.
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    \1\ For purposes of this waiver, the term ``Tribal Recipients'' 
includes all recipients of grants or loan guarantees administered by 
HUD's Office of Native American Programs. This includes Indian 
tribes and TDHEs receiving grants and loan guarantee assistance 
under the Native American Housing Assistance and Self-Determination 
Act's (NAHASDA's) Indian Housing Block Grant Program and Title VI 
Loan Guarantee Program, and Indian tribes and Tribal Organizations 
receiving Indian Community Development Block Grant funds under the 
Housing and Community Development Act of 1974. It also includes 
Federal Financial Assistance provided by HUD to the Department of 
Hawaiian Home Lands (DHHL) which receives annual grant funding under 
the Native Hawaiian Housing Block Grant (NHHBG) program.
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IV. Tribal Infrastructure and HUD Programs

    Many Tribal communities are without basic infrastructure such as 
roads, running water, and indoor plumbing. Critical infrastructure in 
many Tribal communities is severely deficient and in need of repair and 
modernization. Addressing infrastructure needs is especially difficult 
for Tribes due to challenges faced locating available supplies, 
suppliers, and construction labor necessary for development.
    Some Alaska Native villages are located off the road system, have 
short construction seasons because of extreme weather, and must grapple 
with unique transportation limitations, including having to ship basic 
construction materials twice per year by barge or air freight at 
extremely elevated costs. These Tribes often report to HUD that it can 
be a major challenge to secure space on a barge for construction 
materials. At times, even when space is secured, any unexpected 
setbacks faced, such as loss of cargo, materials damaged through 
shipping, or miscalculation of the appropriate amount or quality of 
materials needed, can result in infrastructure and housing projects 
being delayed an entire construction season. A project can be delayed 
for six months or longer until the next barge or carrier can arrive, 
which results in significant cost overruns.
    Annually, HUD provides over $1 billion in FFA to 574 Federally 
recognized Tribal Nations. The Indian Housing Block Grant and the 
Indian Community Development Block Grant programs are critical funding 
sources that allow the Federal Government to carry out its trust 
responsibilities and support affordable housing and infrastructure 
development in Tribal communities. Under these programs, HUD provides 
block grants to Tribal Recipients to address housing and infrastructure 
needs--particularly for the benefit of low- and moderate-income 
families. HUD anticipates that the BAP will apply to some projects 
funded under these programs. Accordingly, HUD must ensure that Tribal 
Recipients are able to effectively implement the BAP and transition to 
compliance.

V. HUD's Consultation Policy

    HUD's ``Tribal Government-to-Government Consultation Policy,'' 
adopted in compliance with Executive Order 13175, ``Consultation with 
Indian Tribal Governments,'' 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 FFA directed to Tribal communities.
    Consistent with its Tribal Government-to-Government Consultation 
Policy, HUD has actively participated in consultation efforts with 
respect to the applicability of the BAP to Tribal Recipients. 
Initially, on September 21, 2022, eight agencies participated in a 
joint consultation hosted by the White House Council on Native American 
Affairs to consult with Tribal Nations on discretionary BAP provisions 
and the waiver categories characterized in OMB initial implementation 
guidance M-22-11. Tribes were initially requested to provide written 
comments and feedback by October 20, 2022 for Federal agency 
consideration. The resulting comments were received by the White House 
Council and distributed to agencies on October 25, 2022.
    Since that time, and in light of the comments received from the 
Tribal leaders and the progress the Department has made implementing 
the BAP in other FFA programs, HUD engaged in consultation with respect 
to specific plans for implementation of the BAP in HUD's FFA provided 
to Tribal Recipients consistent with HUD's Tribal Government-to-
Government Consultation Policy \2\ and with President Biden's ``Tribal 
Consultation and Strengthening Nation-to-Nation Relationships'' 
Memorandum.\3\
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    \2\ https://www.hud.gov/program_offices/public_indian_housing/ih/regs/govtogov_tcp. See also 81 FR 40893.
    \3\ https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/26/memorandum-on-tribal-consultation-and-strengthening-nation-to-nation-relationships/.
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    During the past year, HUD held a series of Tribal consultation 
sessions across the country to obtain feedback from Tribes on the 
likely impact of employing the BAP in HUD's Tribal programs. As a 
result, HUD received over 100 comments from Tribes throughout the 
nation. Consultation sessions were held at the following events:
     National Congress of American Indians Mid-Year session, 
Prior Lake, Minnesota, June 7, 2023;
     Southern Plains Indian Housing Association session, 
Durant, Oklahoma, July 11, 2023;
     Nevada/California Indian Housing Association, Sparks, 
Nevada, August 13-16, 2023;
     United Native American Housing Association conference, 
Salt Lake City, Utah, August 22-24, 2023;
     Northwest Indian Housing Association, Coeur d'Alene, 
Idaho, September 12-14, 2023;
     Affiliated Tribes of Northwest Indians Annual Meeting, 
Chehalis, Washington, September 18-21, 2023;
     HUD ONAP National Tribal Housing Summit, Saint Paul, 
Minnesota, October 31-November 2, 2023;
     National Congress of American Indians Conference, New 
Orleans, Louisiana, November 12-17, 2023;
     Alaska BIA Provider's Conference, Anchorage, AK, November 
29, 2023.
    In addition to conducting in-person Tribal consultation sessions, 
HUD invited Tribes to submit written comments to HUD. HUD received 
written comments from HUD's Tribal Intergovernmental Advisory Committee 
and other Tribal grantees. HUD continues to process and evaluate the 
comments received during this process.

VI. Public Interest in an Extension of HUD's General Applicability 
Waiver of the BAP for FFA Provided to Tribal Recipients

    This proposed waiver extension permits the use of non-domestic 
iron, steel, manufactured products, and construction materials in such 
projects that may otherwise be prohibited under section 70914(a) of 
BABA for HUD Federal financial assistance agreements with Tribal 
Recipients. The proposed waiver extension would apply to awards 
obligated or incrementally funded on or after the effective date of the 
proposed waiver extension until September 30, 2024. In the case of 
awards obligated prior to the effective date, the proposed waiver 
extension would apply to expenditures on or after the effective date of 
the final waiver. HUD is seeking comment on the granting of a limited 
extension to HUD's existing public interest, general applicability 
waiver of the BAP in connection with HUD's FFA to Tribal Recipients for 
HUD to conduct additional Tribal Consultations. HUD proposes this 
limited extension to allow the Department sufficient time to both 
complete its own evaluation of comments received through the 
consultations described above consistent with HUD's Tribal Government-
to-Government Consultation Policy and provide clear guidance and 
technical assistance to recipients so that they understand expectations 
for the conclusion of the waiver, as HUD transitions to full BABA 
compliance in a timely manner. This

[[Page 43427]]

approach is consistent with the policy of Executive Order 13175.
    During the proposed waiver extension, HUD intends to complete its 
analysis of comments received during its own Tribal consultation 
sessions with Tribes concerning the application of the BAP and fully 
brief the Office of Management and Budget on all Tribal feedback 
received. After considering all Tribal feedback, HUD intends to publish 
additional programmatic guidance. The guidance will provide Tribal 
Recipients with additional information including how the BAP will apply 
to HUD's various Tribal programs, ways that Tribal Recipients can 
comply with the BAP, and the process that Tribal Recipients must follow 
to request BAP waivers. HUD will provide training resources to ensure 
that Tribal Recipients are in a good position to implement the BAP 
under HUD's Tribal programs. HUD will also use this extension period to 
provide additional technical assistance resources to ensure that Tribal 
Recipients can build capacity and be in a better position to comply 
with the BAP.
    HUD intends to implement the BAP in a manner that advances the Made 
in America objectives while also ensuring that Tribal Sovereignty and 
Self-Determinations are respected and the treaty and trust obligations 
of the United States are honored. At the conclusion of this proposed 
limited extension, Tribal recipients will be expected to transition to 
full compliance with BABA requirements.

VII. Assessment of Cost Advantage of a Foreign-Sourced Product

    Under OMB Memorandum M-24-02, ``Implementation Guidance on 
Application of the Buy America Preference in Federal Financial 
Assistance Programs for Infrastructure,'' published on October 25, 
2023, 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 and incompliance with applicable law, 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 on the cost of foreign-sourced products.

VIII. Limited Duration of the Waiver

    HUD remains committed to the successful implementation of the 
important Buy America Preference across its programs providing covered 
FFA for infrastructure projects, while recognizing the unique 
government-to-government relationship it has with Tribal Recipients 
receiving HUD FFA for infrastructure projects and the new directives 
set forth in Executive Order 14112. HUD is committed to engaging its 
Federal agency partners in a timely process as noted above to further 
this goal.

IX. Solicitation of Comments

    As required under section 70914 of the Act, HUD is soliciting 
comment from the public on the proposed waiver extension announced in 
this notice for a period of 30 days. If made final, the proposed waiver 
extension would apply to awards obligated or incrementally funded on or 
after the effective date of the proposed waiver extension until 
September 30, 2024. In the case of awards obligated prior to the 
effective date, the waiver would apply to expenditures on or after the 
effective date of the final waiver.

Adrianne R. Todman,
Acting Secretary.
[FR Doc. 2024-10860 Filed 5-16-24; 8:45 am]
BILLING CODE 4210-67-P