[Federal Register Volume 89, Number 130 (Monday, July 8, 2024)]
[Notices]
[Pages 55964-55966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14837]


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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, U.S. Department of Housing and Urban 
Development (HUD or the Department).

ACTION: Final notice.

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SUMMARY: In accordance with the Build America, Buy America Act (BABA or 
the Act), this Final Notice advises that HUD is extending the 
previously issued public interest, general applicability Tribal 
Consultation waiver 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) until September 
30, 2024. This limited 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 before applying the Buy 
America preference to programs that affect Tribal communities.

DATES: HUD published this Final Notice of a limited waiver extension on 
its website on July 1, 2024. The limited waiver extension applies to 
awards obligated or incrementally funded on or after the effective date 
of the Final Notice and until September 30, 2024. In the case of awards 
obligated prior to the effective date of the Final Notice, the limited 
waiver applies to expenditures on or after the effective date of this 
Final Notice.

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 
[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

[[Page 55965]]

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 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 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 with 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 throughout this process.

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

    This limited 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

[[Page 55966]]

Federal financial assistance agreements with Tribal Recipients. This 
limited waiver extension applies to awards obligated or incrementally 
funded on or after the effective date of this Final Notice and until 
September 30, 2024. In the case of awards obligated prior to the 
effective date of this Final Notice, the limited waiver applies to 
expenditures on or after the effective date of this Final Notice. As 
such, HUD is issuing a limited waiver 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 limited waiver 
extension, as HUD transitions to full BABA compliance in a timely 
manner. This approach is consistent with the policy of Executive Order 
13175.
    During the limited waiver extension period, 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 limited 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 limited 
waiver 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 BAP across its programs providing covered FFA for public 
infrastructure projects, while recognizing the unique government-to-
government relationship it has with Tribal Recipients receiving HUD FFA 
for public infrastructure projects and the new directives set forth in 
Executive Order 14112. HUD is committed to engaging its Federal agency 
partners in a timely manner as noted above to further this goal.

IX. Solicitation of Comments

    As required under section 70914 of the Act, HUD solicited comments 
from the public on the proposed limited waiver extension for a period 
of 30 days. Eight comments were submitted through the Federal Register 
during this comment period. HUD thoroughly reviewed and considered them 
along with the six previously submitted public comments and additional 
written comments in support of a waiver extension that Tribal leaders 
and stakeholders submitted during the current comment period. All eight 
comments supported a BABA waiver for Tribal Recipients as long as 
possible and seven, including a resolution submitted by the National 
Congress of American Indians, urged a permanent blanket waiver for all 
HUD-funded awards for Tribal Recipients. Of the six previously 
submitted public comments, two are supportive of an extension, one is 
not related to the Tribal waiver extension, but rather construction 
materials including cast lampposts and related LED fixtures, and three 
opposed an extension of the waiver. Although previous comments opposed 
a waiver extension, HUD appreciates all the submitted public comments. 
As such, HUD believes the limited waiver extension of the application 
of the BAP as set forth in this Final Notice is appropriate and in the 
public interest considering the importance of HUD's Tribal consultation 
and subsequent development of implementation guidance. HUD will 
continue to monitor the implementation of the BAP across its programs 
to ensure the most robust application possible due to the important 
public interests discussed above.

Adrianne R. Todman,
Acting Secretary.
[FR Doc. 2024-14837 Filed 7-5-24; 8:45 am]
BILLING CODE 4210-67-P